Investing Across Borders 2010 by World Bank in Bulgaria

Investing Across Borders 2010 Indicators of foreign direct investment regulation in 87 economies

Investment Climate Advisory Services

In partnership with

World Bank Group

Investing Across Borders 2010 Indicators of foreign direct investment regulation in 87 economies

Afghanistan

Croatia

Macedonia, FYR

Serbia

Albania

Czech Republic

Madagascar

Sierra Leone

Angola

Ecuador

Malaysia

Singapore

Argentina

Egypt, Arab Rep.

Mali

Slovak Republic

Armenia

Ethiopia

Mauritius

Solomon Islands

Austria

France

Mexico

South Africa

Azerbaijan

Georgia

Moldova

Spain

Bangladesh

Ghana

Montenegro

Sri Lanka

Belarus

Greece

Morocco

Sudan

Bolivia

Guatemala

Mozambique

Tanzania

Bosnia and Herzegovina

Haiti

Nicaragua

Thailand

Brazil

Honduras

Nigeria

Tunisia

Bulgaria

India

Pakistan

Turkey

Burkina Faso

Indonesia

Papua New Guinea

Uganda

Cambodia

Ireland

Peru

Ukraine

Cameroon

Japan

Philippines

United Kingdom

Canada

Kazakhstan

Poland

United States

Chile

Kenya

Romania

Venezuela, RB

China

Korea, Rep.

Russian Federation

Vietnam

Colombia

Kosovo

Rwanda

Yemen, Rep.

Costa Rica

Kyrgyz Republic

Saudi Arabia

Zambia

Côte d’Ivoire

Liberia

Senegal

Investment Climate Advisory Services I World Bank Group

This report is a product of World Bank Group staff. The findings, interpretations, and conclusions expressed in this volume do not necessarily reflect the views of the Executive Directors of the World Bank or the governments they represent. The World Bank Group does not guarantee the accuracy of the data included in this work. Rights and Permissions The material in this publication is copyrighted. Copying and/or transmitting portions or all of this work without permission may be a violation of applicable law. The World Bank Group encourages dissemination of its work and will normally grant permission to reproduce portions of the work promptly. For permission to photocopy or reprint any part of this work, please send a request with complete information to the Copyright Clearance Center Inc., 222 Rosewood Drive, Danvers, MA 01923, USA; telephone: 978-750-8400; fax: 978-750-4470; Internet: www.copyright.com. All other queries on rights and licenses, including subsidiary rights, should be addressed to the Office of the Publisher, The World Bank, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2422; e-mail: pubrights@worldbank.org. About the Investment Climate Department of the World Bank Group Investing Across Borders 2010 is an initiative of the Investment Climate Department of the World Bank Group with funding from the Federal Ministry of Finance of Austria and from FIAS, the multi-donor investment climate platform of the World Bank Group. The Investment Climate Department, working with other units of the International Finance Corporation (IFC) and the World Bank, advises governments on reforms to improve their business environments and encourage and retain investment, thus fostering competitive markets, growth and job creation.

Contents Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Summary data table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Topics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Investing Across Sectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Starting a Foreign Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Accessing Industrial Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Arbitrating Commercial Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Profiles of Economies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Project Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Abbreviations and Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

Contents

iii

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Investing Across Borders 2010

Foreword The global financial crisis and subsequent economic downturn led in 2008-2009 to rapid and significant contraction in international trade and investment. But the first half of 2010 has seen a gradualâ&#x20AC;&#x201D;though cautiousâ&#x20AC;&#x201D;upswing in global consumer demand, investor confidence, and economic activity. The resurgence of international commerce and investment is creating new opportunities for companies and countries alike. The factors driving investment decisions by multinational corporations are changing. When seeking business opportunities, companies are now more concerned about financial and political risks, with a focus on stable and predictable business environments. In response, governments everywhere recognize that their chances of attracting more foreign investment depend on making their investment climates more competitive. The Investing Across Borders 2010 report and online database (http://www.investingacrossborders.org) offer companies and governments indicators measuring how countries around the world facilitate market access and operations of foreign companies. For each of the 87 countries surveyed, the report identifies sectors with restricted entry for foreign investors, defines roadmaps for companies seeking to create foreign subsidiaries and acquire real estate, assesses the strength of commercial arbitration systems, and presents dozens of other indicators on regulation of foreign direct investment. For potential investors, the indicators measure the transparency and predictability of countriesâ&#x20AC;&#x2122; legal environments. For governments, the indicators identify good regional and global practices and offer tools for improving the competitiveness of business climates. For academics and researchers, the indicators provide vast amounts of previously unavailable data that enable the pursuit of new insights and knowledge. This report and its Web site are designed to inform decisions, stimulate discussions, spur policy reforms, and facilitate new research and analysis. And as this is the first of what is planned as a regular report on regulation of foreign direct investment, we especially welcome your feedback.

Janamitra Devan

Izumi Kobayashi

Vice President

Executive Vice President

Financial and Private Sector Development

Multilateral Investment Guarantee Agency

World Bank Group

Foreword

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Investing Across Borders 2010

Introduction

ike trade, foreign direct investment (FDI)

The benefits of FDI for economic development

caused by companies in the extractive and

has occurred throughout history. From the

have been well established. A global network

energy sectors.8

merchants of Sumer around 2500 BCE to

of 80,000 multinational corporations and

the East India Company in the 17th century,

800,000 foreign affiliates has helped create

investors routinely entered new markets in

millions of jobs, transferred technology,

foreign dominions. In 1970 global FDI

upgraded skills, fostered competition, and

totaled $13.3 billion. By 2007 it was nearly

contributed to the fiscal standing of many

150 times higher, peaking at $1.9 trillion

economies.5

(figure 1.1).2

FDI has encouraged the adoption of new

The economic crisis slashed global FDI flows by about 40% in 2009, affecting all economies, sectors, and forms of investment. Mergers and acquisitions in high-income economies contracted the quickest after the 2007 subprime mortgage crisis in the United States contributed to banking and fiscal crises

Through

capital

spillovers,

production technologies. Foreign companies have also stimulated knowledge transfers by training local workers, developing their skills, and introducing new management practices and better organizational arrangements.6 Foreign investment has also helped break up

Though

some

these

criticisms

often based on narrowly-focused studies of certain industries and economies. While the potential drawbacks of individual investment projects should not be underestimated, most research and empirical evidence finds that, on balance, FDI helps foster development in recipient economies.9 The benefits of FDI are particularly amplified in economies with good governance, well-functioning institutions, and transparent, predicable legal environments.

cozy local oligopolies and cartels.

in Western Europe and Japan. The contagion

Opponents of FDI point out that its impacts are

gradually spread, affecting new investment in

often limited and in some cases detrimental—

Introducing the Investing Across Borders indicators

emerging markets and developing economies.

the consequences of crowding out local

Developing economies fared marginally better

competition, enclave production with limited

The Investing Across Borders (IAB) indicators

during the crisis. FDI in developing economies

forward and backward linkages, and “race

fell 35% in 2009, compared with 41% in

to the bottom” effects often related to labor

high-income economies.4 With the global

and environmental issues.7 While the main

recession receding somewhat, FDI will likely

social argument for FDI is that it generates

recover in the near future. Most indicators

employment, job creation may be limited and

signal that FDI will be higher in 2010 than

work opportunities may even decrease if local

in 2009.

firms are driven out of the market by increased

The recovery in FDI is good news for economies suffering from the global economic downturn and seeking to stimulate economic growth.

competition, or if acquired companies are restructured. Critics also cite cases of severe pollution

and

environmental

destruction

measure

FDI

regulation

specific

policy areas. They aim to complement existing measures of the quality of business environments.

Quantitative

data

Figure 1.1: FDI in high-income and developing economies, 1970–2009

and

benchmarking can be useful in stimulating policy debate and action, both by exposing potential challenges and by identifying where policy makers might look for lessons and good practices. Indicators can also provide a basis for analyzing how different policy approaches—and different policy reforms— contribute to broader desired outcomes such as FDI, competitiveness, and growth.

The

following examples illustrate how the areas of regulation measured by IAB can be reflected

Billions of U.S. dollars at current prices and exchange rates

in foreign investors’ decisionmaking.

$1,400

A company seeking to expand its global

$1,300

Developing economies

High-income economies

$1,200

presence will assess its options before

$1,100

deciding on a location for its investment. One

$1,000

of the first determinants of location is whether

$900

the company is allowed to enter and operate

$800 $700

in a specific market. Though most economies

$600

have liberalized and opened most sectors to

$500

foreign investment, some industries continue

$400

to be protected from foreign competition.

$200

IAB’s Investing Across Sectors indicators

$100

find that while primary and manufacturing 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

$300

Note: 2009 data are based on preliminary estimates. Source: UNCTAD, Foreign Direct Investment Online, http://stats.unctad.org/fdi.

are

warranted, evidence for such claims is

Investing Across Borders 2010

sectors are mostly open, some industries— such as media, transportation, energy, and telecommunications—remain

restricted

many economies. Some of the more restrictive

economies include large ones such as China,

arbitration as a mechanism for resolving

Mexico, the Philippines, and Thailand.

commercial disputes, although some do not

Even if a foreign company can enter a

have special arbitration laws. Party autonomy levels and enforcement mechanisms for

Box 1.1: The Investing Across Borders Web site

2 years to enforce a final arbitration award.

The Investing Across Borders Web site (http://www.investingacrossborders.org) is a public database offering hundreds of previously unavailable data points on each economy covered by the report. The site:

attractive to foreign investors. IAB’s Starting a

The IAB indicators comprise measures of the

Allows user-friendly access to

Foreign Business indicators show that in some

characteristics of laws and regulations (de jure

economies foreign companies must complete

indicators), and their implementation (de facto

lengthy procedures to obtain investment

indicators). IAB’s Web site provides open

approvals, adding weeks and sometimes

access to these indicators (box 1.1). Below

months to the start-up time. In other economies

are overviews of the 4 indicator topics:

particular sector, it may face other barriers to market access and operations. Onerous start-up procedures, excessive licensing and permit requirements, and time-consuming export and import processes are among the factors that can make an economy less

the procedures can be done online and take only a few days. Once

foreign

arbitration awards vary. For example, some economies have adopted rules to ensure prompt enforcement of arbitration awards. In contrast, in other economies it takes more than

Investing Across Sectors indicators measure the degree to which domestic laws allow

company

has

thousands of data points, sorted by economy or topic.

Displays disaggregated underlying data for each economy and topic.

Offers international benchmarks. Provides references to FDI-related laws.

Lists thousands of leading experts on

been

foreign companies to establish or acquire

established in a new market, it is likely to

local firms. The indicators track restrictions

need to acquire real estate for its operations.

on foreign equity ownership in 33 sectors,

Administrative barriers to FDI often include

aggregated into 11 sector groups, including

difficulties associated with securing access to

primary, manufacturing, and service sectors.

security of their property, investments, and

Starting a Foreign Business indicators record

reducing all regulatory barriers, but hopes to

the time, procedures, and regulations involved

improve understanding of how to maximize

in establishing a local subsidiary of a foreign

the development benefits of FDI through

company in the form of a limited liability

appropriate regulatory frameworks.

land.10 The ability to access land or buildings with secure ownership rights, at transparent prices, and with limited restrictions can be critical to a foreign investor’s decision on whether to invest in a new market. IAB’s Accessing Industrial Land indicators find that

rights. The IAB project does not advocate for

company.

foreign companies cannot own land in some

Accessing Industrial Land indicators evaluate

economies. In others, leasing land can take

legal options for foreign companies seeking

up to 5 months. And while most economies

to lease or buy land in a host economy, the

have both cadastre and land registry systems,

availability of information about land plots,

less than half of those in the IAB sample have

and the steps involved in leasing land.

systems for sharing land-related data across

business and FDI laws and regulations.

Goals of the IAB indicators The World Bank Group’s Doing Business project provides the methodological foundation for the IAB indicators.12 The Doing Business indicators compare regulation of domestically

Arbitrating Commercial Disputes indicators

owned small and medium enterprises. Those

assess the strength of legal frameworks

A foreign company might also be concerned

indicators have helped stimulate hundreds

for alternative dispute resolution, rules for

about its ability to resolve disputes with

of reforms worldwide and draw millions of

arbitration, and the extent to which the

commercial partners. Complex commercial

visitors to their online database every year.

judiciary supports and facilitates arbitration.

contracts require reliable and flexible dispute

Many users of Doing Business data—including

The indicators compare national regimes

resolution mechanisms, and companies often

governments, policymakers, academics, and

for domestic and international arbitration for

prefer to have alternatives to court litigation.

other stakeholders—have expressed interest

local and foreign companies.

in complementary indicators on regulation of

agencies.

Investors favor environments where they have flexibility in deciding on arbitration proceedings and where outcomes are more secure and easily enforceable. Thus a stable and predictable arbitration regime, as part of the broader legal framework, is another factor that can affect conditions for FDI. IAB’s Arbitrating Commercial Disputes indicators show that economies generally recognize

The indicators are structured to reward good regulation and efficient processes. Transparent,

predictable,

and

effective

laws and regulations are critical to ensuring

foreign-owned companies. The IAB indicators aspire to meet different stakeholders’ needs for information, analysis, and policy action (table 1.1).

that foreign investment results in a win-win

Foreign investors and governments concerned

situation for investors, host countries, and their

about the competitiveness of their economy’s

citizens. A solid, consistently applied legal

business environment have a broad range

framework gives investors confidence in the

of resources at their disposal. Table 1.2 lists

Introduction

Table 1.1: Audiences and uses for the IAB indicators Audience

Uses

Governments and investment promotion intermediaries

Identify and share regional and international good practices that help guide policy advocacy priorities.

Stimulate and advise investment policy reforms. Strengthen the credibility of information provided by investment promotion inter-

economies’ investment climates and should be used in conjunction with other tools to analyze business environments, diagnose their strengths and weaknesses, and, if

gies and publicize successes in improving investment climates.

IAB’s value is based on its ability to identify

Facilitate decisions on global investment locations by complementing other information sources.

Provide easy to use, practical indicators on the efficiency of investment

specific, actionable, and practical steps that governments can take to increase domestic investment competitiveness in the policy and regulatory areas measured by the IAB

Identify legal, regulatory, and administrative impediments to economies’ attrac-

indicators. The following features differentiate

Analyze regional and global good practices to better target and design advi-

Actionable, reform-oriented indicators.

tiveness for investment. sory efforts.

Foster competition to strengthen FDI regulations by allowing economies and regions to compare themselves.

Monitor and evaluate the impact of investment climate reforms. Table 1.2: International indicators and assessments of investment climates

IAB from other data sources: The IAB indicators identify specific impediments to FDI in the legal, regulatory, administrative, and institutional frameworks of each economy covered. The indicators are reform-oriented because the identified problems can be addressed in the

Country Commercial Guides (http://www.buyusainfo.net)

short and medium term to strengthen an

Country Risk Reports (http://www.ihsglobalinsight.com)

economy’s investment climate. They are

Doing Business (http://www.doingbusiness.org)

based on standardized questionnaires,

Economic Freedom of the World (http://www.freetheworld.com/reports.html)

allowing for straightforward international

Economist Intelligence Unit assessments and other products (http://www.eiu.com)

comparisons of results, providing ex-

Enterprise Surveys (http://www.enterprisesurveys.org) Euromonitor International (http://www.euromonitor.com) FDI Confidence Index (http://www.atkearney.com) FDI Profiles (http://www.vcc.columbia.edu)

amples of good practices, and encouraging exchanges of information between economies.

Local expertise. The IAB indicators are based on information collected from more

fDi Intelligence (http://www.fdiintelligence.com)

than 2,350 local experts and practitioners

Fitch Ratings (http://www.fitchratings.com)

representing leading law and accounting

Global Competitiveness Report (http://www.weforum.org/en/initiatives/gcp)

firms, chambers of commerce, and invest-

Global Location Trends (http://www.ibm.com/bcs/pli)

ment promotion institutions. These experts

Global Production Location Scoreboard (http://www.global-production.com/scoreboard) Index of Economic Freedom (http://www.heritage.org/index) International Country Risk Guide (http://www.prsgroup.com/icrg.aspx) Investment Policy Reviews (http://www.unctad.org/ipr) Market Potential Index for Emerging Markets (http://globaledge.msu.edu/resourcedesk/mpi)

bring a wealth of knowledge based on their experiences advising foreign investors on market entry and operations in their economies.

Focus on laws and their implementation. The IAB indicators evaluate the scope and

Measures of Restrictions on Inward Foreign Direct Investment in Developing Countries paper (http://www.swarthmore.edu/SocSci/sgolub1)

strength of laws and regulations as well

Moody’s Investor Service (http://www.moodys.com)

Many economies have adopted modern

as, where possible, their implementation.

OCO Insight (http://www.ocoglobal.com/index.cfm?page_name=insight)

laws and rules, but these are often not ap-

Policy Framework for Investment (http://www.oecd.org/daf/investment/pfi)

plied effectively. The combined measures

Standard and Poor’s (http://www.standardandpoors.com)

of de jure and de facto performance

World Competitiveness Yearbook (http://www.imd.ch/research/publications/wcy/index.cfm)

provide a more comprehensive, realistic

World Investment Report (http://www.unctad.org/wir)

IAB does not provide a complete picture of

appropriate, guide reforms.

processes and the strength of investment laws as implemented worldwide and make them available online.

Advisers and consultants on investment policy and promotion

and assessments of investment climates.

mediaries by using third-party evaluations of the investment climates.

Benchmark economies against one another to refine investment promotion strateForeign investors and site location consultants

some widely used international indicators

Investing Across Borders 2010

picture of business conditions.

Periodic updates. The IAB report will

in this report based on what was desirable,

become a regular publication measuring changes in FDI regulation worldwide. Similar initiatives have shown the power of regularly updated indicators to stimulate dialogue and actions that can lead to systemic, long-term reforms. IAB’s ability to capture and recognize these improvements on a regular basis gives political actors compelling tools for engaging in strategic communication and for initiating or sustaining reform momentum.

feasible, and practical.

on international investment agreements.

IAB favored topics that could be affected by public policy in the short term and information that could be captured through surveys of local experts. It aimed for indicators that assess the treatment of a typical foreign investor and offer enough variation across economies to warrant the development of global indicator set. While legal and regulatory frameworks for FDI are typically not the primary drivers of investment decision, all other conditions being equal, they can tip an investment decision in

Evolution and Limitations of the IAB Indicators

favor of a particular economy. Strong, stable

The IAB indicators have limited thematic

environment conducive to business and

coverage. The 4 topics covered by this report were chosen from a wide range of policy variables that affect investment climates and influence investment decisions. These include the host economy’s market size and location, availability of natural resources, macroeconomic performance, infrastructure quality, labor and production costs, and

legal and regulatory frameworks help create a more transparent, predictable business investment. Thus a well-designed, effectively implemented legal and regulatory framework signals to investors that foreign investment is welcome.

FDI (such as macroeconomic performance, infrastructure quality, and human capital) can only be influenced in the medium to long run. In contrast, most of the areas of business and FDI regulation measured by IAB can be affected in the short run and at comparatively low cost to governments, providing an excellent opportunity for near-term benefits. In its conceptual and developmental phases (2006–08) the IAB project considered and tested indicators measuring policy areas such as employment of expatriate workers and managers, investment incentives and promotion,

currency

convertibility

and

repatriation, expropriation, breach of contract, public procurement, environmental and social regulation, and intellectual property. The team ultimately decided on the more modest thematic coverage of the 4 topics presented

governed by special legal frameworks designed to promote FDI and exports.

Methodological limitations IAB is not a survey of investor or company perceptions.

IAB data are not based on a statistically significant sample of respondents in each economy.

The IAB indicators are not necessarily representative of all investment projects.

Data on the efficiency of administrative processes refer to each economy’s largest business city only.

For these data, the methodology assumes full information on what is required and that they do not waste time when complet-

understanding

ing procedures.

their

scope.

This

section

on the content and thematic coverage of the

Furthermore, other policy-level drivers of

processing zones (EPZs), and other areas

the IAB indicators is just as important as

Many competitive factors (such as market size, cannot easily be influenced by public policy.

for special economic zones (SEZs), export

that an investor and its legal counsel have

quality of governance and institutions.

location, and natural resource availability)

The project does not cover legal regimes

However, understanding the limitations of

gives an overview of the IAB project’s

international conventions. It does not focus

limitations in 3 areas: substantive, focusing indicators; methodological, concerned with the questionnaire design and data collection; and limits to the implications of the indicators, addressing their potential interpretation, uses, and relationships with various economic and social data. These limitations pertain to the project as a whole and are discussed in greater detail in the methodology chapter

The IAB indicators are not specifically designed to indicate whether treatment of foreign investors is more or less favorable than that of domestic enterprises.

Limits to intepretation and use The IAB indicators do not examine whether more regulation is preferable to less. They focus on good regulation.

IAB data should not be used as a proxy

and on IAB’s Web site. Additional limitations

for government reforms in general, and

related specifically to each of the 4 topics

governments should not assume that

covered by the project are also presented.

improvements in the indicator scores will

Readers and users of the IAB indicators are

increase FDI.

urged to keep these limitations in mind when interpreting the data.

Substantive limitations IAB focuses on regulation of FDI, not portfolio investment.14

Thematic coverage is limited to 4 discrete policy areas.

IAB focuses on national laws and, in

Due to these and other limitations, the IAB indicators are only partial measures of the topics they cover. They are limited in scope and explanatory power when it comes to actual policies and business realities. Circumstances in each economy must be considered when interpreting the indicators and their implications for policies and the investment climate.

some cases, on countries’ ratifications of

Introduction

What’s next? Investing Across Borders is a new initiative that the IAB team aims to continue to improve in the future. Over time the team hopes to increase the number of economies surveyed, introduce rankings and other direct comparisons for each topic measured, and engage a growing number of questionnaire respondents. Though there are currently no plans to expand the report’s thematic coverage to other areas of FDI regulation, this option will be considered if there is specific and sufficient demand from

1 According to the International Monetary Fund, FDI is a category of cross-border investment that involves residents of one economy obtaining a lasting interest in an enterprise located in another economy. A lasting interest is commonly understood to involve at least 10% of ordinary shareholding or voting power. In effect, FDI need not entail much transfer of funds and can involve a firm bringing its brand, technology, management, and marketing strengths to bear on its local interest. 2 The previous peak was in 2000, at $1.4 trillion, which fell to $561 billion in 2003 before peaking again in 2007.

report’s findings in the research, analysis,

3 This report uses developing economies to refer to all low- and middle-income countries with 2008 gross national income (GNI) per capita of $11,905 or less, based on World Bank data. All economies with 2008 GNI per capita of $11,906 or more are referred to in this report as high-income economies.

and reform advisory work of the World Bank

4 UNCTAD (2010).

Group and its partners. Any parties interested

5 UNCTAD (2004).

in collaborating on any of these areas are

6 de Mello (1997).

welcome to contact the IAB team. The team would also be grateful for feedback on the

7 Centre for Research Corporations (2008).

data, methodology, and overall project

8 Ibid.

design that would make IAB a better, more

9 Nair-Reichert and Weinhold (2001).

useful resource for its users.

10 Muir and Shen (2005).

For more information on the project, please

11 The 87 economies contain 86% of the world’s population and account for 77% of global GDP.

governments or other stakeholders to carry out the additional research. The IAB team also intends to leverage the

visit http://www.investingacrossborders.org.

12 Doing Business, http://www.doingbusiness. org.

Endnotes

Investing Across Borders 2010

Multinational

13 MIGA (2009); Nunnenkamp (2002); Porter (2008); UNCTAD (2005a). 14 Portfolio investment, in contrast to foreign direct investment, represents passive holdings of securities such as foreign stocks, bonds, or other financial assets and does not convey significant control over the management or operations of the foreign firm.

Overview

nvesting Across Borders 2010 (IAB) presents cross-country indicators

When it comes to international commercial arbitration, nearly 10% of

analyzing laws, regulations, and practices affecting foreign direct

IAB countries do not have special statutes for commercial arbitration.

investment (FDI) in 87 economies. The indicators focus on 4 thematic

Furthermore, 1 in 4 countries has not ratified the New York Convention,

areas measuring how foreign companies invest across sectors, start

the ICSID Convention, or both.2 Adherence to and implementation

local businesses, access industrial land, and arbitrate commercial

of international and regional conventions on arbitration signal a

disputes. The indicators combine analysis of laws and regulations, as

government’s commitment to the rule of law and its investment treaty

well as their implementation. They explore differences across countries

obligations, which reassures investors.

to identify good practices, facilitate learning opportunities, stimulate reforms, and provide cross-country data for research and analysis. The project’s methodology is based on the World Bank Group’s Doing Business initiative.1 The IAB indicators draw on data collected through a survey of lawyers, other professional service providers (mainly accounting and consulting firms), investment promotion institutions,

Red tape and poor implementation of laws create further barriers to FDI The IAB indicators go beyond analyzing the text of laws and the ratification of international conventions. They also examine the typical experience of investors as they go through administrative processes

chambers of commerce, and other expert respondents in each of the countries measured. Between April and December 2009 more than 2,350 experts in 87 economies responded to the survey to provide data for this report. This chapter presents the report’s main findings including examples

Figure 2.1: Share of IAB countries requiring foreign investment approval, by region

of FDI competitiveness-enhancing practices for each indicator area.

High-income OECD (12) 0%

It also provides key results for each region. IAB does not measure

Eastern Europe & Central Asia (20) 0%

all aspects of the business environment that matter to investors. For example, it does not measure security, macroeconomic stability, market size and potential, corruption, skill levels, or infrastructure quality. Still, the indicators provide a starting point for governments seeking to improve their competitiveness in attracting foreign investment.

Latin America & 0% Caribbean (14) IAB global average (87) Sub-Saharan Africa (21) Middle East & North Africa (5)

20% 38% 40% 40%

South Asia (5)

Main findings

East Asia & Pacific (10)

Restrictive and obsolete laws and regulations impede FDI Most of the 87 economies measured by IAB have FDI-specific

50% 0

Note: 0% denotes that none of the countries in that region require an investment approval. Source: Investing Across Borders database.

restrictions that hinder foreign investment. For example, a fifth of the countries surveyed require foreign companies to go through a foreign investment approval process before proceeding with investments in light manufacturing (figure 2.1). This requirement adds, on average, nearly 1 month to the establishment process—and in some countries

Figure 2.2: Restrictions on foreign ownership of companies vary by sector Foreign equity ownership index (100=full foreign ownership allowed)

up to 6 months.

IAB global average=89.3

In addition, almost 90% of countries limit foreign companies’ ability to participate in some sectors of their economies. While there are few restrictions on foreign ownership in the primary sectors and manufacturing,

services—such

media,

transportation,

and

electricity—have stricter limits on foreign participation (figure 2.2). In some sectors—such as banking, insurance, and media—laws often limit the share of foreign equity ownership allowed in enterprises. In others—such as transportation and electricity—state-owned monopolies preclude both foreign and domestic private firms from engaging in the sectors.

Construction, tourism, and retail Light manufacturing Health care and waste management

98.1 96.6 96.0 95.9

Agriculture and forestry Mining, oil and gas

92.0

Insurance

91.2

Banking

91.0

Telecommunications

88.0

Electricity

87.6

Transportation

78.5

Media

68.0 0

Source: Investing Across Borders database.

Investing Across Borders 2010

100

and interact with public institutions. For instance, the indicators find that

subsidiary of a foreign company can take more than 6 months (figure

leasing privately held industrial land takes, on average, 2 months—and

2.5). In Canada, Georgia, and Rwanda it can be done in less than

leasing public land almost 5 months (figure 2.3). But there is also large

a week. In Sub-Saharan Africa and the Middle East and North Africa

variation across countries. Leasing private industrial land in Nicaragua

the procedures required of foreign companies take twice as long to

and Sierra Leone typically requires half a year, as opposed to less than

complete as those for domestic companies. In high-income OECD

2 weeks in Armenia, the Republic of Korea, and Sudan.

countries and Eastern Europe and Central Asia these FDI-specific

The amount of time required to enforce an arbitration award in local courts also varies by country. On average, more than a year is needed in the South Asian economies measured by IAB. In contrast, in highincome OECD countries such as France and the United Kingdom,

additional procedures add only a couple of days, on average.

Good regulations and efficient processes matter for FDI

enforcement can be completed in less than 2 months (figure 2.4).

Countries with poor regulations and inefficient processes for foreign

The typical experience of foreign companies trying to start a business

FDI (figure 2.6). Based on IAB results, countries tend to attract more FDI

also varies greatly across countries. In Angola and Haiti establishing a

if they allow foreign ownership of companies in a variety of sectors,

companies receive less FDI and have smaller accumulated stocks of

make start-up, land acquisition, and commercial arbitration procedures Figure 2.3: Far more time is needed to lease public than private land

205

Sub-Saharan Africa (21)

to lease land privatethe holder particularly well in# Days attracting FDI from (before recent economic crisis)—

such as Ireland, Singapore, the United Kingdom, and the United

151

States—also score well on the IAB indicators.3

East Asia & Pacific (10)

151

Eastern Europe & Central Asia (20)

IAB also finds that countries with # Days to lease land from smaller governmentpopulations and markets tend to have fewer restrictions on FDI. And countries that have done

156

causal relationship. Many other variables—such as market size, political likely to better explain the relationship.

Latin America & Caribbean (14)

interests. But this correlation does not imply existence or direction of a stability, infrastructure quality, or level of economic development—are

■ # Days to lease land from private holder ■ # Days to lease land from government South Asia (5)

efficient and transparent, and have strong laws protecting investor

43 133 59

Middle East & North Africa (5)

123

High-income OECD (12)

88 61

IAB global average

Figure 2.5: Fastest and slowest countries for starting a foreign business Number of days

140

Source: Investing Across Borders database.

Figure 2.4: The time required to enforce an arbitration award varies significantly across regions Regional average of the number of days to enforce an arbitration award in court South Asia (5)

388

Middle East & North Africa (5) East Asia & Pacific (10) Latin America & Caribbean (14)

288 215 206

IAB global average (87)

179

Sub-Saharan Africa (21) Eastern Europe & Central Asia (20)

157 123 118

High-income OECD (12) 0

100 150 200 250 300 350 400 450

Source: Investing Across Borders database.

Angola Haiti Venezuela, RB Brazil Papua New Guinea China Vietnam Cambodia Indonesia Bosnia & Herzegovina France

263 212 179 166 108 99 94 86 86 83 9

Singapore 9 Egypt, Arab Rep. 8 Turkey 8 Macedonia, FYR 8 Belarus 7 Albania 7 Afghanistan 7 Canada 6 Georgia 4 Rwanda 4 0

100

150

200

250

300

Source: Investing Across Borders database.

Overview

Figure 2.6: Good regulations and efficient processes are associated with more FDI

Average number of FDI projects, 2005-09

Average FDI stock per capita (USD), 2004-08

300

$10,000

Note: Correlations compare aggregate IAB score with two measures of FDI. The first figure shows the correlation with the 5-year average number of new FDI projects and is significant at the 5% level. The second shows the 5-year average FDI stock per capita and is significant at the 1% level. The aggregate IAB score is the average of the share of total possible points of the 4 topics. The IAB aggregate is broken into 5 quintiles expressed as groups of economies below the 20th, 40th, 60th, 80th, and 100th percentile ranking.

$9,000

250

$8,000

200

$7,000

150

$5,000

$6,000 $4,000

100

$3,000 $2,000

$1,000

0 IAB low score

$0 IAB low score

IAB high score

Figure 2.7: Countries vary widely on the effectiveness of land management systems Share of economies with land information system (LIS)

Share of economies in which cadastre and land/property registry are linked to share data*

No 77%

Source: fDi Intelligence database, UNCTAD FDI Statistics database, World Bank Group World Development Indicators database, Investing Across Borders database.

Effective institutions help foster FDI Easily accessible and reliable information, and efficient and predictable actions by public institutions help create a business environment conducive to investment. For instance, studies

No 61%

have shown that 70% of countries miss out on foreign investment due to deficiencies of

Yes 23%

investment promotion institutions in providing

Yes 39%

potential investors with accurate and up-todate information.4 Electronic services can make administrative processes more efficient and transparent and

Source: Investing Across Borders database.

do not necessarily require costly or complex

* Only includes 41 economies which have cadastre and land registry.

technological solutions. Any public agency with a Web site can start by posting key information online and, over time, provide

Figure 2.8: Court assistance with arbitration varies by region

some services electronically. The convenience of online access to laws and

IAB regional average index of the degree of court assistance with arbitration proceedings (100 = maximum assistance)

regulations is important to all businesses, but particularly for foreign investors not physically

Eastern Europe & Central Asia (20)

present in a country. IAB shows that laws on

51 East Asia & Pacific (10)

establishing a foreign business are available 57

Sub-Saharan Africa (21)

online in all IAB countries except Ethiopia,

Latin America & Caribbean (14)

Ghana, and Liberia. In 83% of IAB countries laws on commercial arbitration are available

online. But many of these are not Web sites

IAB global average (87)

of government institutions, but of law firms.

South Asia (5)

Economies that provide a lot of information

Middle East & North Africa (5)

about land, often through a land information system, usually make it accessible online.

High-income OECD (12) 0 Source: Investing Across Borders database.

Investing Across Borders 2010

100

There is significant variation in the effectiveness of institutions providing land information

(mainly land registries and cadastres). Except

Montenegro, Papua New Guinea, Rwanda,

investment climate. Furthermore, countries that

in some Eastern European and Central

Sierra Leone, and the Solomon Islands. In

provide their citizens with good public services,

Asian and high-income OECD countries,

some countries such institutions are no longer

have good institutions, enjoy political stability,

public land management institutions are not

active, as in Ethiopia and Liberia.

and do not suffer from corruption tend to score

organized well enough to make information easily accessible. Less than a quarter of the countries surveyed have functioning land information systems, and many lack effective and coordinated land management institutions (figure 2.7).5 As technology develops, access to information becomes paramount—not only to inform investors, but also to improve the countries’ business climates.

Courts can make arbitration more effective. During arbitration proceedings, courts may be required to support arbitral tribunals. Similarly, if interim measures are required—such as freezing assets, making interim payments, or seizing property—courts must be approached by the party seeking the order. In many countries in East Asia and the Pacific and Eastern Europe and Central Asia laws do not expressly provide

well on the IAB indicators (figure 2.9).

Countries can improve their FDI competitiveness The IAB indicators are designed to identify good practices that offer governments concrete tools for improving their investment climates in the 4 measured indicator areas. Though legal frameworks and their implementation may not be the main drivers of foreign investment

The existence of a functioning arbitral

for domestic courts to assist the arbitration

institution in a country is an indication of a

process with orders for production of documents

solid arbitration practice. But more than

or appearance of witnesses (figure 2.8).

can tip the balance in favor of one country

In general, IAB shows that effective institutions

Countries that score well on the IAB indicators

that provide easily accessible and reliable

share certain features (box 2.1).

10% of the countries surveyed do not have such an institution, including Afghanistan, Angola, Bangladesh, Cambodia, Kosovo,

decisions (see the Introduction chapter), they over another if all other factors are equal.

information matter for creating an enabling

Figure 2.9: Higher IAB scores are associated with better governance, higher institutional quality, lower political risk, and less corruption

Avg World Governance Indicators Normalized Score, 2008 (-2.5 = weak, 2.5 = strong) 0.6

Global Investment Promotion Benchmark (GIPB), 2009 (1 = minimum score, 100 = max score) 80

0.4 0.2

0.0 -0.2

-0.4 -0.6

-0.8 -1.0 IAB low score

IAB high score

PRS Political Rating Index, 2010 (0 = high risk, 100 = low risk)

0 IAB low score

IAB high score

Transparency International Corruption Percetpions Index, 2009 (1 = most corrupt, 10 = least corrupt) 6

5 70

4 60

40 IAB low score

IAB high score

1 IAB low score

IAB high score

Note: The first figure (top left) shows the correlation between IAB aggregate scores and the average normalized score for the six indicators that compose the World Bank Governance Indicators: voice and accountability, political stability and absence of violence, government effectiveness, regulatory quality, rule of law, and control of corruption. The second figure (top right) shows the correlation between IAB aggregate scores and the Global Investment Promotion Benchmark percentile rank of each country’s investment promotion agency. This indicator measures the quality of each agency’s handling of investor inquiries and its Web site. The third figure (bottom left) shows the correlation between IAB aggregate scores and the PRS Group’s International Country Risk Guide political risk ratings. The fourth figure (bottom right) shows the correlation between IAB aggregate scores and Transparency International’s Corruption Perceptions Index, which orders countries based on “the degree to which corruption is perceived to exist among public officials and politicians.” The IAB aggregate scores are averages of the share of possible point score per topic. The scores have been broken into 5 quintiles ranked from the least to highest number of scored points. All correlations are significant at the 1% level. Source: World Bank Group Worldwide Governance Indicators database, World Bank Group Global Investment Promotion Benchmarking database, PRS Group Political Risk Ratings, Transparency International Corruption Perceptions Index database, Investing Across Borders database.

Overview

Box 2.1: Characteristics of countries that score well on the IAB indicators Investing Across Sectors Allowing foreign ownership in the primary, manufacturing, and service sectors. The results of the Investing Across Sectors indicators illustrate 2 key points. First, the global trend has been to liberalize a growing range of economic sectors. Second, in many countries the benefits of openness to foreign capital participation have trumped reasons for restricting certain sectors from foreign ownership. For every country that limits or prohibits foreign equity ownership in certain sectors, several others with similar features allow unrestricted foreign ownership. But having an open economy is not enough. Other requirements include good regulation and strong investment climate fundamentals, with features such as well-functioning institutions, economic and political stability, and respect for the rule of law. Starting a Foreign Business Equal treatment of foreign and domestic investors. The start-up process should be governed by the same rules for all companies regardless of their ownership. Any differences in treatment should be due to companies’ size, legal form, or commercial activity—not the nationality of its shareholders.

Simple and transparent establishment process. Countries should consolidate start-up procedures and abolish unnecessary ones (such as company seal requirements or investment approvals for small projects). Obtaining investment approvals can be burdensome for foreign investors. Countries should simplify or abolish such requirements unless foreign investment is in a sector that affects national or economic security. In addition, countries can enable investors to register businesses online. Fast-track alternatives, even if they entail higher processing fees, are also usually valuable to foreign investors. Finally, countries should not require foreign companies to go through a local third party (lawyer, notary, public entity).

Accessing Industrial Land Clear laws which provide fair and equal treatment for foreign and domestic companies. Laws should provide sufficient security to investors—foreign and domestic—so that they feel comfortable operating and expanding their businesses, and should not limit their ability to develop, renew, transfer, mortgage, or sublease land. Laws and regulations should take into account the interests of all stakeholders related to land use—including investors, governments, and local communities. Attention must also be paid to environmental protection.

Accessible land information. Land records should be up-to-date, centralized, integrated (linked across relevant government agencies), easily accessible (preferably with online access), and provide information useful to investors and the general public.

Efficient land acquisition procedures. A country should have clear rules for acquiring private and public land. Rules should remove

unnecessary and burdensome steps while enabling authorities to conduct a proper process with fair protections for the greater public good.

Arbitrating Commercial Disputes Strong arbitration laws in line with arbitration practice. Many countries have enacted modern arbitration laws. Ideally these are consolidated in one law or a chapter in civil code and are coherent, up-to-date, and easily accessible. A strong legal framework should be associated with effective arbitration practices and greater awareness of the benefits of arbitration.

Autonomy to tailor arbitration proceedings. Good arbitration regimes provide a flexible choice for commercial dispute resolution.

Parties should be able to choose how to run their arbitration processes, including whether they will be ad hoc or administered by an arbitral institution, the qualifications of the arbitrators, and the language of the proceedings.

Supportive local courts. A good arbitration regime is associated with strong support from local courts for arbitration proceedings and consistent, efficient enforcement of arbitration awards.

Adherence to international conventions. Adherence to and implementation of international and regional conventions on arbitration

such as the New York Convention and the ICSID Convention signal a government’s commitment to the rule of law and the protection of investor rights.

Source: Investing Across Borders database.

Investing Across Borders 2010

Regional findings The IAB indicators show significant variation across regions (figure 2.10). Figure 2.10: Share of possible points per IAB indicator topic by regional average 0 = min., 100 = max. 100%

87%

East Asia & Pacific

80%

71% 58%

60%

Eastern Europe & Central Asia High-income OECD Latin America & Caribbean

40%

Middle East & North Africa 20% 0%

South Asia Sub-Saharan Africa Investing Across Sectors

Starting a Foreign Business

Accessing Industrial Land

Arbitrating Commercial Disputes

IAB average

Note: The IAB average is a simple average of the 87 economies measured by IAB. Source: Investing Across Borders database.

East Asia and the Pacific

Investing Across Sectors East Asia and the Pacific has more restrictions on foreign equity ownership in all sectors than any other region. At the same time, the region displays the greatest intraregional variance, with less populous economies being more open. For example, Singapore and the Solomon Islands have few restrictions, while China and Indonesia impose foreign equity limits in many service sectors.

Starting a Foreign Business The ease of establishing a foreign subsidiary varies greatly across East Asia and the Pacific. Papua New Guinea (108 days), China (99), Vietnam (94), Indonesia (86), and Cambodia (86) are among the 10 IAB economies with the longest start-up processes. On the other hand, Singapore has one of the world’s fastest start-up processes (9 days). Half of the region’s economies surveyed by IAB require investment approvals—China, Indonesia, Papua New Guinea, the Solomon Islands, and Vietnam. In China, Papua New Guinea, and the Solomon Islands foreign companies can hold foreign currency bank accounts only after obtaining approval from authorities.

Accessing Industrial Land Except for Malaysia, Thailand, and Singapore, none of the 10 economies surveyed in East Asia and the Pacific allows private ownership of land. Accordingly, foreign companies lease rather than buy land in the region. But lease rights are not particularly strong. In the Philippines a foreign company cannot mortgage leased land or use it as collateral to buy production equipment. Singapore offers the strongest lease rights, allowing investors to use land as collateral and to sublease and subdivide it. The time required to lease private land ranges from 1 month in Thailand to 4 months in Vietnam. Leasing land from the government takes 3 months in Indonesia—and almost a year in Malaysia. Overall, access to and availability of land information are low in the region.

Arbitrating Commercial Disputes All the countries surveyed in East Asia and the Pacific have laws on commercial arbitration and display them online. The laws generally offer broad party autonomy in arbitration, though some restrictions apply. For instance, Cambodia requires parties to choose an arbitrator who is a member of the National Arbitration Center. In Indonesia arbitrators must be at least 35 and have 15 years of experience in the field. Most countries in the region have active arbitration centers, with the exception of Cambodia, Papua New Guinea, and the Solomon Islands. Enforcement of arbitration awards is slow in most of the region, taking more than a year in the Philippines and Thailand. Papua New Guinea, Thailand, and Vietnam are not parties to the ICSID Convention. In addition, Papua New Guinea has not ratified the New York Convention.

Overview

Eastern Europe and Central Asia

Investing Across Sectors Across sectors, Eastern Europe and Central Asia is the region most open to foreign equity ownership. Georgia and Montenegro have no restrictions on foreign ownership of companies in any of the sectors measured by the IAB indicators. And every country in the region allows full foreign ownership of companies in banking, construction, health care, retail, tourism, and waste management. Media and transportation are more restricted. Azerbaijan, Belarus, Kazakhstan, and Ukraine impose more restrictions in media than most other countries in the region. Within the region, countries in Central and Eastern Europe have fewer restrictions on foreign equity ownership than those in the Commonwealth of Independent States.

Starting a Foreign Business Eastern European and Central Asian countries offer simple establishment processes for foreign companies. Bulgaria, Croatia, and Romania offer online business registration. Half the world’s 10 countries with the fastest start-up processes are from this region—Georgia (4 days), Albania (7 days), Belarus (7 days), the former Yugoslav Republic of Macedonia (8 days), and Turkey (8 days). Although none of the 20 countries surveyed in the region requires an investment approval, 5 require investment notifications or declarations.

Accessing Industrial Land Foreign companies typically buy rather than lease land in Eastern Europe and Central Asia. Every country in the region except the Kyrgyz Republic allows private ownership of land. Ownership rights are strong. Access to and availability of land information are also generally strong throughout the region, though they vary significantly by country. In Armenia land information and geotechnical maps are publicly accessible through a land information system. But in Romania and Ukraine publicly available land information is limited. The time required to lease land from a private holder ranges from about 1 week in Georgia to nearly 5 months in Poland. The time required to lease land from the government ranges from 2 months in Kosovo to almost a year in Bulgaria.

Arbitrating Commercial Disputes About 80% of countries in Eastern Europe and Central Asia have enacted specific laws on commercial arbitration, less than in other regions. In contrast, the region has the largest share of countries with laws on commercial mediation and conciliation (11 of 20). All economies except Kosovo are members of the New York Convention. But Eastern Europe and Central Asia also has the largest share of economies that have not ratified the ICSID Convention: the Kyrgyz Republic, Moldova, Montenegro, Poland, and the Russian Federation. Most economies in the region restrict arbitration of commercial disputes over immovable property (70%), and many restrict arbitration of intracompany disputes (55%), shareholders disputes (25%), and disputes involving patents or trademarks (20%). Enforcement of arbitration awards is fast. For domestic awards, excluding appeals, the time ranges from 38 days in Kazakhstan to more than a year in Armenia.

High-income OECD

Investing Across Sectors High-income OECD countries have relatively few restrictions on foreign equity ownership, though foreign ownership of companies in transportation is far more restricted than in most other regions. In particular, foreign ownership of airlines is limited to a less than 50% stake in all high-income OECD countries covered by the IAB indicators. Greece and Spain apply additional equity restrictions on airport operations, and Japan, France, and Spain have limits on foreign ownership of ports. In the Czech Republic, Ireland, and the Slovak Republic restrictions on foreign equity are limited to the transportation sector, while other countries—such as Greece and Spain—limit foreign ownership in more sectors, including electricity and media.

Starting a Foreign Business High-income OECD countries offer easy establishment processes. Canada (6 days) and France (9 days) are among the world’s 10 countries with the fastest start-up processes. Though none of the 12 high-income OECD economies surveyed require investment approvals, 7 require some type of investment notification or declaration—Canada, the Czech Republic, France, Japan, the Republic of Korea, the Slovak Republic, and Spain. Except for Greece and Spain, all the surveyed high-income OECD countries offer downloadable registration documents.

Investing Across Borders 2010

Accessing Industrial Land All the surveyed high-income OECD countries allow private ownership of land and provide strong lease and ownership rights. Access to land information is relatively easy throughout these countries, and many have land and geographic information systems. Ireland offers extensive information on land plots, including environmental impact assessments, tax classifications, and utility connections. In Korea, however, such information is not publicly available. Overall, leasing procedures are quick relative to other regions. The time required to lease private land ranges from 2 weeks in Japan to 3 months in the Czech Republic, and the time required to lease land from the government ranges from 3 weeks in Greece to almost 5 months in France.

Arbitrating Commercial Disputes Arbitration is a long-established, common mechanism for resolving commercial disputes in all surveyed high-income OECD countries. All have enacted laws on commercial arbitration and make them available online. In addition, all are members of the New York Convention, and only Canada has not ratified the ICSID Convention. Party autonomy in arbitration proceedings is respected in all these countries, though Spain requires arbitrators in domestic arbitrations to be lawyers and Spanish nationals. A number of economies in the region such as Canada, the Czech Republic, France, the United Kingdom, and the United States allow online arbitration, especially for smaller claims. Enforcement of awards is faster than in any other region. For domestic awards excluding appeals, enforcement times range from about 1 month in France to almost a year in Greece.

Latin America and the Caribbean

Investing Across Sectors Latin American and Caribbean countries impose few restrictions on foreign equity ownership. Chile, Guatemala, and Peru are among the world’s most open economies, with almost no restrictions on foreign ownership in any sectors covered by IAB. In all of the region’s countries surveyed by IAB, construction, light manufacturing, retail, and tourism have no limits on foreign equity ownership. Banking, insurance, and telecommunications are also more open than in most other regions. However, a number of countries—including Bolivia, Haiti, and Mexico— impose restrictions in these sectors. The electricity sector is more restricted in the region than the global average, with foreign equity ownership of companies limited to a less than 50% stake in Bolivia, Costa Rica, and Mexico.

Starting a Foreign Business Establishing a foreign (as well as a domestic) business takes a long time in Latin America and the Caribbean. The region contains countries with some of the world’s slowest start-up processes, including Haiti (212 days), República Bolivariana de Venezuela (179 days), and Brazil (166 days). Still, 9 of the 14 countries surveyed do not require foreign investment approval or notification. Some form of capital importation notification or certification is required in more than half the countries in the region. The use of local third parties in the establishment process is widely required in Latin America and the Caribbean. In addition, foreign companies are prohibited from holding bank accounts in foreign currency in Brazil, Colombia, and República Bolivariana de Venezuela.

Accessing Industrial Land Foreign companies typically buy private land in Latin America and the Caribbean, and all the countries surveyed allow private land ownership. While most countries in the region offer strong ownership rights, the strength of lease rights varies. In Guatemala there is no public inventory of lands or buildings and the land registry and cadastre are not linked to share data. By contrast, Costa Rica has a publicly accessible land information system. The time required to lease private land ranges from 3 weeks in Peru to 5 months in Nicaragua. The time to lease land from the government ranges from 3 months in Chile to more than 7 months in Haiti.

Arbitrating Commercial Disputes Aside from Argentina, all the countries surveyed in the region have specific laws on commercial arbitration. In some countries the legal framework for arbitration is spread across various decrees and codes, resulting in legal controversies and complexities (as in Colombia). Almost half the countries surveyed in the region have also enacted laws on commercial mediation. Every country in the region has ratified the New York Convention, but Bolivia, Brazil, Ecuador, and Mexico are not parties to the ICSID Convention. There are few restrictions on the arbitrability of commercial disputes except in Mexico and República Bolivariana de Venezuela (which restrict the arbitrability of disputes over immovable property), Colombia (which restricts the arbitrability of intracompany disputes), and Chile (which restricts the arbitrability of patent and trademark disputes). Some countries prohibit the selection of foreign nationals as arbitrators in domestic arbitrations. Some require that parties select locally licensed lawyers as arbitrators and that local language be used in domestic arbitration proceedings. Enforcement of domestic awards ranges from 85 days in Ecuador to more than a year in Colombia.

Overview

Middle East and North Africa

Investing Across Sectors Relative to other regions, countries in the Middle East and North Africa are fairly restrictive on foreign equity ownership in many sectors. An exception is Tunisia, which has no limits on foreign ownership of firms in nearly all sectors measured by IAB. In several countries in the region, extractive industries (mining, oil, and gas) are much less open to foreign capital participation than in other regions, as are electricity and transportation. Morocco, Tunisia, and the Republic of Yemen restrict foreign equity ownership in electricity transmission and distribution. Equity restrictions also exist in port and airport operations. On the other hand, no country in the region imposes limits on foreign participation in agriculture and forestry.

Starting a Foreign Business In the Middle Eastern and North African economies surveyed by IAB, it takes twice as long to start a foreign company as it does a domestic company. Still, the start-up process in the region takes only 19 days on average, compared with the IAB global average of 42 days. The Arab Republic of Egypt (8 days) has one of the fastest establishment processes of all countries covered by IAB. In Saudi Arabia and the Republic of Yemen foreign companies are required to obtain investment approvals or authorizations, which take about 2 weeks. Foreign companies have to go through investment promotion agencies to establish subsidiaries in Egypt and Saudi Arabia. All the countries surveyed in the region except Egypt post business registration documents online.

Accessing Industrial Land Foreign companies typically lease private land in the Middle East and North Africa. All the countries surveyed except Morocco allow private land ownership. Compared with other regions, lease rights are not very strong in the region. For example, in Saudi Arabia it is not possible to subdivide or use land as collateral under a lease contract. In Egypt both are possible. Availability of land information is on par with other regions but varies by country. In Morocco the inventory of available land is publicly available, while in Tunisia the land registry does not provide this information. The time required to lease private land ranges from almost 4 weeks in Saudi Arabia to 3 months in Morocco, and the time it takes to lease land from the government ranges from 2 months in the Republic of Yemen to 10 months in Morocco.

Arbitrating Commercial Disputes All the countries surveyed in the Middle East and North Africa have laws on commercial arbitration, though only Morocco has enacted a law on mediation. All the region’s countries except the Republic of Yemen are parties to the New York Convention. All have ratified the ICSID Convention. There are few restrictions on subject matter arbitrability—except in Egypt, which restricts arbitration of disputes over immovable property and of intracompany disputes. In contrast, there are restrictions across the region on party autonomy in arbitration proceedings. These include a prohibition on the selection of foreign arbitrators (Saudi Arabia) and of foreign counsel to represent parties in arbitration proceedings (Egypt, Morocco, Saudi Arabia). Only in Egypt and Tunisia have courts stated pro-arbitration policies. The region’s enforcement of arbitration awards in local courts is among the slowest in the world. For domestic awards excluding appeal, this time ranges from almost 3 months in Morocco to more than a year in Saudi Arabia.

South Asia

Investing Across Sectors Economies in South Asia restrict foreign ownership in the primary sector more than do most other regions. In Sri Lanka foreign equity ownership is restricted in the mining, oil, and gas sectors, and in India forestry is closed to foreign investors. On the other hand, many service sectors— including telecommunications and electricity—have fewer restrictions on foreign equity participation than in other regions. India is the only country in the region with restrictions on foreign ownership in telecommunications, and Sri Lanka in electricity. Foreign capital participation in insurance is limited to 26% in India and 51% in Pakistan. In general, India has the region’s most restrictions on foreign equity ownership.

Starting a Foreign Business It takes on average 39 days to establish a foreign subsidiary in the South Asian economies surveyed. With 7 days and 4 procedures, Afghanistan offers one of the fastest start-up processes. Except for Pakistan, all countries in the region require some form of investment approval or notification. In Afghanistan and Sri Lanka it takes foreign companies 5 and 26 days, respectively, to obtain investment approvals, while Bangladesh and India merely require declarations. All the countries surveyed in South Asia offer business registration documents online. Restrictions on holding foreign currency bank accounts exist in 3 of the 5 economies covered. In Pakistan and Sri Lanka foreign companies can hold such accounts only after obtaining approvals from public authorities, which take 27 and 5 days, respectively.

Investing Across Borders 2010

Accessing Industrial Land Foreign companies typically lease land from governments in South Asia even though private ownership of land is allowed in all countries except Afghanistan. Lease rights are not particularly strong in the region. For example, in Afghanistan a foreign company cannot mortgage leased land or use it as collateral to buy production equipment. Bangladesh offers the strongest lease rights in the region, allowing land to be used as collateral and in a mortgage contract. Access to and availability of land information are generally high in the region, though they vary. The time it takes to lease land is longer than in most other regions. For private land the time required to lease ranges from 2 months in Bangladesh to 7 months in Afghanistan, and for government land from 3 months in Sri Lanka to 10 months in India.

Arbitrating Commercial Disputes All the countries surveyed in South Asia have laws on commercial arbitration, and Afghanistan and Sri Lanka have enacted laws on mediation. In addition, all the region’s countries are parties to the New York Convention and all, except India, to the ICSID Convention. Arbitration laws in the region allow broad party autonomy in arbitration proceedings, with the exception of restrictions on using foreign counsel in domestic arbitration proceedings in Bangladesh, India, and Sri Lanka. None of the laws in the region provide for the confidentiality of arbitration proceedings. In general, arbitration is not a common method of resolving commercial disputes in the region. Only India and Sri Lanka have active arbitration centers. South Asia is also the slowest region in court enforcement of arbitration awards. In Pakistan and Sri Lanka it takes more than 2 years to enforce arbitration awards. Sub-Saharan Africa

Investing Across Sectors Sub-Saharan countries tend to be more open to foreign equity ownership than those in other regions—particularly in agriculture and forestry, where no countries except Sierra Leone and Sudan have restrictions on foreign equity ownership. On the other hand, countries such as Angola, Tanzania, and Uganda have more restrictions on foreign ownership in banking, insurance, and telecommunications than do most other countries. In Ethiopia these industries are completely closed to foreign capital participation. Indeed, Ethiopia is one of the most restricted countries measured by IAB, with foreign equity limits in most of its service sectors. In contrast, Mauritius and Zambia are among the world’s most open economies to foreign ownership and have consistently been among the largest recipients of FDI per capita.

Starting a Foreign Business Establishing a foreign-owned company in Sub-Saharan Africa takes longer, on average, than in other regions. It takes twice as long to start a foreignowned company than a domestic one. Yet while Angola (263 days) has the slowest establishment process of all the countries surveyed by IAB, Rwanda (4 days) offers the fastest. Investment approval requirements are common in the region. On average, it takes 33 days to obtain an approval—longer than in any other region. Less than a third of the Sub-Saharan countries surveyed make incorporation documents available for download, and only Mauritius allows online company registration. In 8 of the 21 economies surveyed, foreign companies are required to go through local representatives to establish a subsidiary. In some countries foreign investors can open foreign currency bank accounts only after obtaining approval from public authorities. In Burkina Faso, Côte d’Ivoire, Mali, and Senegal the Monetary Union of West Africa (UEMOA) requires a foreign company to receive authorization from a minister of finance and ultimately the Central Bank of the West African States (BCEAO) to open a foreign currency bank account.

Accessing Industrial Land Foreign companies typically lease land from the state in Sub-Saharan Africa. Almost half the countries surveyed in the region do not allow private ownership of land. The strength of long-term lease rights over state land varies. In Sierra Leone the maximum duration of a land lease contract is only 21 years. In addition, land cannot be subdivided, subleased, or used as collateral. On the other hand, Ghana allows leased land to be mortgaged or used as collateral. Across the region the access to and availability of land information are relatively poor, with some variations. In Nigeria it is easy to find information on land and buildings through the land registry in Lagos, while in Madagascar there is no such public registry. Land information is also publicly available in Mauritius, but not in Ethiopia. The time required to lease land from a private holder ranges from 10 days in Rwanda to 5 months in Mozambique, and the time required to lease land from the government ranges from 2 months in Mali to 10 months in South Africa.

Arbitrating Commercial Disputes Many Sub-Saharan economies have modern arbitration statutes that incorporate international standards and good practices. None of the 21 countries surveyed impose legal restrictions on appointing an arbitrator of a different nationality. Many West and Central African economies are subject to the Law on Arbitration of the Organization for the Harmonization of Business Law in Africa (OHADA), which provides uniform provisions on arbitration, including confidentiality of arbitration proceedings. A third of the region’s economies do not post their arbitration statutes online—a higher share than in other regions. And despite having modern statutes, their implementation is often problematic. In Ghana and Tanzania it takes more than a year to enforce arbitration awards. Liberia and Rwanda have no or only nascent arbitration institutions, making institutional arbitration difficult. In contrast, Mozambique and South Africa have well-functioning arbitral institutions. All Sub-Saharan economies except Angola, Ethiopia, Sierra Leone, and Sudan have ratified the New York Convention. Angola, Ethiopia, and South Africa have not ratified the ICSID Convention.

Overview

Economy

Index

Afghanistan Albania Angola Argentina Armenia Austria Azerbaijan Bangladesh Belarus Bolivia Bosnia and Herzegovina Brazil Bulgaria Burkina Faso Cambodia Cameroon Canada Chile China Colombia Costa Rica Côte d’Ivoire Croatia Czech Republic Ecuador Egypt, Arab Rep. Ethiopia France Georgia Ghana Greece Guatemala Haiti Honduras India Indonesia Ireland Japan Kazakhstan Kenya Korea, Rep. Kosovo Kyrgyz Republic Liberia

Mining, oil and gas

100.0 100.0 74.5 100.0 74.5 100.0 49.0 100.0 100.0 49.0 100.0 100.0 100.0 95.0 100.0 95.0 100.0 100.0 75.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 90.0 100.0 100.0 100.0 100.0 100.0 97.5 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

Agriculture and forestry

100.0 100.0 100.0 100.0 50.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 50.0 72.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

Light manufacturing

100.0 100.0 82.5 100.0 100.0 100.0 100.0 100.0 100.0 100.0 87.3 100.0 100.0 100.0 100.0 100.0 81.1 100.0 75.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 80.0 100.0 100.0 100.0 100.0 100.0 100.0 81.5 68.8 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

Telecommunications

100.0 100.0 75.0 100.0 100.0 100.0 100.0 100.0 75.0 49.0 100.0 100.0 100.0 87.5 100.0 100.0 46.7 100.0 49.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 0.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 74.0 57.0 100.0 83.3 49.0 70.0 49.0 100.0 100.0 100.0

Electricity

100.0 100.0 100.0 100.0 100.0 70.9 100.0 100.0 64.3 49.0 85.7 100.0 100.0 100.0 85.7 71.4 100.0 100.0 85.4 100.0 35.0 100.0 100.0 100.0 85.4 100.0 50.0 100.0 100.0 100.0 0.0 100.0 100.0 100.0 100.0 95.0 100.0 100.0 100.0 92.9 85.4 100.0 100.0 71.4

Banking

100.0 100.0 10.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 65.0 100.0 62.5 100.0 100.0 100.0 100.0 100.0 100.0 50.0 0.0 100.0 100.0 100.0 100.0 100.0 49.0 100.0 87.0 99.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

Insurance

100.0 100.0 50.0 100.0 100.0 100.0 100.0 100.0 49.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 50.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 0.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 26.0 80.0 100.0 100.0 100.0 66.7 100.0 100.0 100.0 100.0

Transportation

100.0 79.6 80.0 79.6 55.6 79.6 100.0 100.0 80.0 89.8 100.0 68.0 79.6 100.0 69.8 49.0 79.6 100.0 49.0 100.0 100.0 100.0 69.4 79.6 69.8 76.0 10.0 59.6 100.0 100.0 49.4 100.0 80.0 89.8 59.6 49.0 79.6 39.8 100.0 70.0 79.6 90.0 79.6 90.0

Media

100.0 70.0 30.0 30.0 100.0 74.5 16.5 100.0 30.0 100.0 49.0 30.0 100.0 100.0 100.0 49.0 73.4 100.0 0.0 70.0 100.0 100.0 100.0 100.0 74.5 50.0 0.0 20.0 100.0 100.0 100.0 100.0 100.0 100.0 63.0 5.0 100.0 60.0 20.0 75.0 39.5 100.0 100.0 100.0

Sector group 1 (constr., tourism, retail)

100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 83.3 100.0 100.0 100.0 100.0 100.0 100.0 83.0 50.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 83.7 85.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

Sector group 2 (health care, waste mgt.)

100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 50.0 100.0 100.0 100.0 100.0 50.0 100.0 85.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 82.5 100.0 50.0 100.0 100.0 100.0 100.0 100.0 100.0

Time (days)

7 7 263 50 18 30 11 55 7 54 83 166 20 15 86 82 6 29 99 27 63 42 23 18 68 8 28 9 4 72 22 30 212 35 46 86 14 25 34 34 17 54 12 25

Procedures (number)

4 7 12 18 8 10 7 9 6 18 14 17 5 5 10 14 2 11 18 13 14 12 9 11 16 7 10 7 4 10 18 12 13 15 16 12 5 10 9 12 11 11 4 8

Ease of establishment index (0 = min, 100 = max)

68.4 84.2 39.5 65.0 78.9 73.7 71.6 55.3 78.9 63.2 65.8 62.5 78.9 44.7 44.7 41.1 81.6 63.2 63.7 68.4 73.7 52.6 81.6 81.6 55.3 63.2 21.1 77.5 84.2 34.2 68.4 57.9 63.2 68.4 76.3 52.6 70.0 81.6 65.8 57.9 71.1 73.7 73.7 55.3

Strength of lease rights index (0 = min, 100 = max)

73.3 80.7 87.9 79.3 92.8 85.7 78.5 100.0 71.4 65.0 75.0 85.7 85.7 74.9 92.9 73.6 100.0 85.7 96.4 85.7 100.0 86.6 85.7 85.7 61.5 85.7 74.9 99.9 86.7 90.0 85.7 78.6 71.4 78.6 92.9 78.6 92.9 85.7 86.7 78.6 85.7 85.7 91.2 57.7

n/a 100.0 75.0 100.0 100.0 100.0 100.0 100.0 100.0 87.5 100.0 100.0 100.0 50.0 n/a 75.0 100.0 100.0 n/a 100.0 100.0 62.5 100.0 100.0 100.0 75.0 n/a 100.0 100.0 n/a 100.0 100.0 87.5 100.0 87.5 n/a 100.0 100.0 66.7 100.0 100.0 100.0 n/a n/a

Strength of ownership rights index (0 = min, 100 = max)

Accessing Industrial Land

9.1 47.4 36.8 44.4 73.7 42.1 42.1 26.3 50.0 33.3 45.0 33.3 36.8 31.6 41.7 52.6 46.2 33.3 50.0 52.6 73.7 47.4 55.0 75.0 27.8 30.0 0.0 47.4 52.6 30.0 47.4 27.8 30.0 55.6 15.8 21.4 50.0 30.8 36.8 22.2 68.4 47.4 55.6 28.6

Access to land information index (0 = min, 100 = max)

Starting a Foreign Business

0.0 85.0 60.0 85.0 95.0 80.0 85.0 73.7 60.0 65.0 75.0 75.0 95.0 50.0 52.5 55.0 85.0 80.0 52.5 80.0 60.0 75.0 75.0 90.0 77.5 50.0 2.5 90.0 80.0 85.0 80.0 70.0 40.0 75.0 85.0 85.0 100.0 75.0 95.0 85.0 70.0 65.0 82.5 15.0

Availability of land information index (0 = min, 100 = max)

Investing Across Sectors

218 36 40 48 10 33 58 58 34 42 31 66 60 .. 41 75 68 23 59 40 23 62 78 96 106 45 75 91 8 104 15 34 90 61 90 35 70 17 37 72 10 25 15 28

Time to lease private land (days)

Foreign equity ownership indexes (100 = full foreign ownership allowed) Time to lease public land (days)

301 129 129 112 57 79 105 240 97 170 n/a 180 351 120 119 108 131 93 129 111 136 276 107 131 151 .. 142 142 50 247 20 168 219 182 295 81 77 96 159 113 53 59 154 193

Arbitrating Commercial Disputes

68.1 84.0 74.9 63.5 89.9 95.4 82.4 84.9 78.3 80.3 72.6 84.9 93.1 94.9 92.4 87.4 89.9 94.9 94.9 93.1 92.4 94.9 93.1 97.4 86.3 89.9 49.9 90.0 85.8 74.9 97.4 91.6 79.9 97.6 88.5 95.4 94.9 95.4 77.5 94.9 94.9 74.9 74.9 44.9

Strength of laws index (0 = min, 100 = max)

0.0 40.7 57.3 72.2 82.3 83.7 53.6 67.5 79.0 65.7 57.1 45.7 64.7 67.6 48.6 79.6 84.7 62.8 76.1 52.3 59.0 82.9 71.4 88.5 58.3 74.9 74.0 86.6 75.2 88.5 86.1 72.3 74.9 73.3 67.6 81.8 79.6 77.7 70.4 77.1 81.9 63.9 72.3 56.4

Ease of process index (0 = min, 100 = max)

Table 2.1: Summary of IAB indicators

0.0 68.5 59.9 55.1 27.3 83.0 37.0 55.3 84.9 54.2 76.3 57.2 68.6 67.9 46.0 64.6 94.0 74.8 60.2 18.2 50.9 55.8 52.7 65.8 59.8 54.2 34.8 94.0 53.6 40.9 48.6 58.4 28.5 59.5 53.4 41.3 75.8 65.9 78.2 56.3 70.2 27.5 61.7 42.0

Extent of judicial assistance index (0 = min, 100 = max)

Investing Across Borders 2010

Overview

Economy

Agriculture and forestry

Mining, oil and gas

Index

Macedonia, FYR 100.0 100.0 Madagascar 100.0 100.0 Malaysia 70.0 85.0 Mali 95.0 100.0 Mauritius 100.0 100.0 Mexico 50.0 49.0 Moldova 100.0 100.0 Montenegro 100.0 100.0 Morocco 93.8 100.0 Mozambique 100.0 100.0 Nicaragua 100.0 100.0 Nigeria 100.0 100.0 Pakistan 100.0 100.0 Papua New Guinea .. .. Peru 100.0 100.0 Philippines 40.0 40.0 Poland 100.0 100.0 Romania 100.0 100.0 Russian Federation 100.0 100.0 Rwanda 100.0 100.0 Saudi Arabia 0.0 100.0 Senegal 100.0 100.0 Serbia 100.0 100.0 Sierra Leone 100.0 75.0 Singapore 100.0 100.0 Slovak Republic 100.0 100.0 Solomon Islands 100.0 100.0 South Africa 74.0 100.0 Spain 100.0 100.0 Sri Lanka 40.0 100.0 Sudan 75.0 75.0 Tanzania 100.0 100.0 Thailand 49.0 49.0 Tunisia 100.0 100.0 Turkey 100.0 100.0 Uganda 100.0 100.0 Ukraine 100.0 100.0 United Kingdom 100.0 100.0 United States 100.0 100.0 Venezuela, RB 74.5 100.0 Vietnam 50.0 100.0 Yemen, Rep. 100.0 100.0 Zambia 100.0 100.0 Source: Investing Across Borders database.

Light manufacturing

100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 .. 100.0 75.0 100.0 100.0 100.0 100.0 75.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 87.5 100.0 87.3 100.0 100.0 100.0 82.5 65.0 100.0 100.0 75.0 100.0 100.0

Telecommunications

100.0 74.5 39.5 100.0 100.0 74.5 100.0 100.0 100.0 75.0 100.0 100.0 100.0 .. 100.0 40.0 100.0 100.0 100.0 100.0 70.0 100.0 100.0 100.0 100.0 100.0 100.0 70.0 100.0 100.0 50.0 65.0 49.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 50.0 50.0 100.0

Electricity

100.0 92.9 30.0 100.0 100.0 0.0 100.0 100.0 0.0 100.0 100.0 100.0 100.0 .. 100.0 65.7 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 71.4 50.0 100.0 49.0 71.4 78.6 71.4 100.0 100.0 100.0 85.7 71.4 71.1 100.0

Banking

100.0 100.0 49.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 70.0 49.0 .. 100.0 60.0 100.0 100.0 100.0 100.0 60.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 50.0 100.0 49.0 100.0 100.0 49.0 100.0 100.0 100.0 100.0 65.0 100.0 100.0

Insurance

100.0 100.0 49.0 100.0 100.0 49.0 100.0 100.0 100.0 100.0 100.0 100.0 51.0 .. 100.0 100.0 100.0 100.0 49.0 100.0 60.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 50.0 66.0 49.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

Transportation

79.6 80.0 100.0 100.0 100.0 54.4 100.0 100.0 39.8 100.0 89.8 100.0 79.6 .. 89.8 40.0 59.2 79.6 79.6 100.0 40.0 100.0 100.0 80.0 47.4 79.6 100.0 100.0 39.6 60.0 60.0 100.0 49.0 100.0 69.4 100.0 79.6 79.6 85.0 20.0 69.4 60.0 100.0

Media

100.0 100.0 65.0 49.0 60.0 24.5 74.5 100.0 100.0 20.0 74.5 100.0 37.0 .. 100.0 0.0 74.5 100.0 75.0 100.0 0.0 100.0 74.5 100.0 27.0 100.0 100.0 60.0 50.0 40.0 0.0 24.5 27.5 100.0 62.5 100.0 15.0 100.0 62.5 20.0 0.0 100.0 100.0

Sector group 1 (constr., tourism, retail)

100.0 100.0 90.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 .. 100.0 100.0 100.0 100.0 100.0 100.0 91.7 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 66.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

Sector group 2 (health care, waste mgt.)

100.0 100.0 65.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 .. 100.0 100.0 100.0 100.0 100.0 100.0 50.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 49.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 75.5 100.0 100.0

Time (days)

8 12 14 29 11 31 10 15 18 34 42 44 21 108 43 80 33 11 31 4 21 10 14 43 9 18 66 65 61 65 55 38 34 19 8 39 28 14 11 179 94 29 58

Procedures (number)

6 3 11 8 9 11 9 14 8 12 8 12 11 10 11 17 7 7 10 3 6 5 8 8 4 8 10 8 13 6 13 14 9 14 8 21 11 7 8 19 12 9 9

Ease of establishment index (0 = min, 100 = max)

76.3 65.0 60.5 42.5 68.4 65.8 70.0 78.9 55.3 65.8 57.9 47.5 64.7 48.9 72.5 57.9 85.0 89.5 68.4 60.5 35.0 45.0 84.2 65.0 78.9 92.1 47.9 78.9 71.1 47.9 40.0 62.5 60.5 71.1 65.8 47.4 80.0 85.0 80.0 42.5 57.9 68.4 47.4

Strength of lease rights index (0 = min, 100 = max)

85.6 84.5 78.5 80.0 90.0 81.3 79.9 69.2 86.8 53.1 72.1 78.5 85.7 .. 79.3 68.8 78.6 86.7 85.7 89.2 64.3 85.6 78.6 44.4 100.0 84.6 91.1 84.5 100.0 85.7 71.4 81.2 80.7 85.7 85.7 71.4 88.5 100.0 100.0 72.5 77.3 69.2 71.4

100.0 75.0 87.5 50.0 87.5 100.0 100.0 100.0 n/a n/a 100.0 n/a 100.0 .. 100.0 n/a 100.0 100.0 100.0 87.5 50.0 87.5 100.0 n/a 100.0 100.0 n/a 100.0 100.0 87.5 n/a n/a 62.5 87.5 87.5 n/a 100.0 100.0 100.0 100.0 n/a 62.5 n/a

Strength of ownership rights index (0 = min, 100 = max)

Accessing Industrial Land

68.4 26.3 23.1 28.6 31.3 33.3 52.6 78.9 73.7 33.3 31.6 50.0 10.5 .. 44.4 23.5 35.0 33.3 44.4 38.5 33.3 50.0 45.0 26.3 55.0 61.1 15.8 47.4 61.1 31.6 30.8 36.8 27.8 36.8 63.2 25.0 36.8 50.0 50.0 44.4 57.9 57.9 37.5

Access to land information index (0 = min, 100 = max)

Starting a Foreign Business

90.0 85.0 85.0 5.0 95.0 90.0 70.0 65.0 65.0 62.5 75.0 67.5 65.0 .. 75.0 87.5 65.0 85.0 90.0 50.0 50.0 75.0 75.0 30.0 80.0 75.0 2.5 85.0 90.0 75.0 30.0 62.5 70.0 80.0 90.0 77.5 55.0 80.0 95.0 75.0 92.5 85.0 75.0

Availability of land information index (0 = min, 100 = max)

Investing Across Sectors

13 81 96 .. 19 83 19 40 101 148 149 123 59 .. 20 16 146 57 62 10 25 33 67 210 56 73 138 42 32 68 12 73 30 69 15 60 50 53 44 87 120 53 104

Time to lease private land (days)

Foreign equity ownership indexes (100 = full foreign ownership allowed) Time to lease public land (days)

79 132 355 63 100 151 75 185 296 175 267 254 96 .. 112 n/a 162 65 231 99 60 101 177 277 98 85 168 304 90 91 60 82 128 84 72 80 209 62 92 138 133 52 122

Arbitrating Commercial Disputes

93.1 85.0 94.9 80.0 84.9 79.1 84.0 63.5 97.6 95.4 95.4 95.4 94.9 59.9 97.4 95.4 74.2 84.8 71.6 93.1 70.0 89.9 95.4 65.0 94.9 93.1 40.0 82.4 97.4 95.4 77.4 82.4 84.9 77.5 89.9 86.3 86.6 99.9 85.0 89.1 84.9 74.9 97.4

Strength of laws index (0 = min, 100 = max)

74.9 74.2 81.8 67.5 71.2 84.7 81.8 60.0 69.5 80.9 73.3 82.3 68.5 55.6 83.3 87.0 82.8 75.2 76.1 80.1 30.4 85.1 71.4 70.5 81.8 85.7 0.0 79.0 76.1 71.3 73.3 74.7 81.8 71.4 69.5 62.9 78.1 87.5 81.8 57.1 61.8 81.4 65.7

Ease of process index (0 = min, 100 = max)

Table 2.1: Summary of IAB indicators (continued)

69.7 83.3 66.7 8.3 77.1 52.7 60.9 46.5 64.7 22.2 40.3 71.5 35.5 26.2 62.6 33.7 77.3 93.2 76.6 73.3 28.6 98.8 90.2 20.5 93.5 88.5 0.0 94.5 75.3 38.0 67.8 39.1 40.8 52.3 68.6 39.3 72.6 94.5 75.3 52.2 57.2 44.0 77.3

Extent of judicial assistance index (0 = min, 100 = max)

Endnotes 1 The methodology of the Doing Business project can be viewed at http://www.doingbusiness. org. 2 Complete names are the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the 1966 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). 3 According to World Bankâ&#x20AC;&#x2122;s World Development Indicators, of the 87 economies measured by IAB, the countries with the highest FDI per capita between 2000 and 2007 are Austria, Canada, the Czech Republic, France, Ireland, Singapore, the Slovak Republic, Spain, the United Kingdom, and the United States. 4 World Bank Group, Global Investment Benchmarking Report 2009, Washington, D.C. World Bank Group. 5 Land information systems are parcel-based databases used to acquire, process, store, and distribute land information. They can also be used for legal, administrative, and economic decisionmaking and for planning and development.

Investing Across Borders 2010

Topics

Investing Across Sectors Interesting facts

More than a quarter of the 87 countries surveyed by Investing Across Borders (IAB) have few or no sector-specific restrictions on foreign ownership of companies.

Smaller countries have fewer restrictions on foreign owner-

ship of companies, while larger countries—such as China, Mexico, the Philippines, and Thailand—are among those with the most.

Countries in Eastern Europe and Central Asia and Latin

America and the Caribbean tend to be the most open to foreign ownership of companies.

Though services account for a growing share of global for-

eign direct investment (FDI), foreign ownership of companies is more restricted in the service sector than in the primary and manufacturing sectors.

Worldwide, restrictions on foreign ownership are strictest in media, transportation, electricity, and telecommunications industries.

Most countries allow foreign ownership of equity in alternative energy companies—with some countries in Middle East and North Africa being notable exceptions.

Source: Investing Across Borders 2010.

FDI) and on the acquisition of shares in existing companies (mergers and acquisitions). The indicators focus on 33 sectors, aggregated into 11 broader sector groups that conform with economic classifications, in order to facilitate data presentation and analysis (box 3.1: Sector coverage of the Investing Across Sectors indicators).1 While the industry coverage of the Investing Across Sectors indicators is not exhaustive, the 33 sectors capture most of the economic activity, and in aggregate account for over 80% of global GDP and FDI flows.2 The indicators are based on the text of investment codes, commercial laws, merger and acquisition laws, and other related statutes (box 3.2). Unlike trade policy, cross-country comparisons of foreign investment regimes, and especially limits on foreign ownership, have not received sufficient analysis.3 Early attempts at quantifying national-level FDI restrictions have been limited to simply counting the number of policies that negatively affect FDI, without weighing the relative importance of the individual policies.4 Recognizing that service sectors are more restricted than primary and secondary sectors, other attempts at a numeric presentation of FDI restrictions have primarily relied on the Mode 3 commitments of the General Agreement on Trade in Services (GATS).5 The methodology chapter of this report explores the relationship between the Investing Across Sectors indicators and GATS commitments.

Introducing the Investing Across Sectors indicators

The design of the Investing Across Sectors indicators is based principally

The Investing Across Sectors indicators measure overt statutory restrictions

Commission,6 and later developed further by the OECD and UNCTAD

on foreign ownership of equity in new investment projects (greenfield

FDI restrictiveness indexes.7 The indicators follow the recommendations

Box 3.1: Sector coverage of the Investing Across Sectors indicators

Box 3.2: Types of laws measured by the Investing Across Sectors indicators

Mining, oil and gas. Agriculture and forestry. Light manufacturing. Telecommunications: fixed-line and mobile/wireless infrastruc-

Investment laws (for example investment codes, investment

ture and service provision.

Electricity: generation (coal, hydro, biomass, solar, wind), transmission and distribution.

Banking. Insurance. Transportation: railway freight, domestic and international air, airport and port operation.

Media: newspaper publishing and TV broadcasting. Sector group 1: construction, tourism and retail. Sector group 2: health care and waste management.

on an approach presented in 1997 by the Australian Productivity

Investing Across Borders 2010

promotion laws and regulations, foreign investment acts, laws and regulations governing sectors closed to foreign investment).

Company and business organization laws (for example commercial codes, foreign company laws, company registration laws).

Merger and acquisition laws. Foreign exchange laws and regulations. Sector-specific laws and regulations (for example telecommunications law, energy law).

Industrial policy orders. Civil codes. Constitutions.

of a 2006 UNCTAD report, which suggest that “future research should seek to verify and refine the results reported in the paper, extend the data collection and analysis to additional countries … [and provide] more detailed analysis of the FDI laws and regulations

Figure 3.1: Eastern Europe and Central Asia has the least restrictions on foreign ownership of companies Foreign equity ownership index (100=full foreign ownership allowed) 100

94.3

91.6

91.2

pertaining to services in different countries.”

90.2

IAB global average 89.3 83.5

88.2

74.4

The Investing Across Sectors indicators place a particular emphasis on providing detailed

measures of the service sectors, given the relative prevalence of FDI restrictions in

services in relation to other economic sectors, as well as the growing importance of services in the global economic output and FDI flows (box 3.3).

20 0

In summary, the Investing Across Sectors indicators measure one of the fundamental areas of market access for FDI—statutory

Eastern Europe & Central Asia (20)

Latin America High-income Sub-Saharan & Caribbean OECD Africa (14) (12) (21)

South Asia (5)

Middle East & North Africa (5)

East Asia & Pacific (10)

Source: Investing Across Borders database.

openness to foreign equity participation in the primary, manufacturing, and service sectors. of these indicators are that they explicitly,

Results of the Investing Across Sectors indicators

and in a publicly verifiable manner, identify

Looking at the results through a regional

The strengths and particular advantages

restrictions on foreign companies’ equity participation across sectors. The indicators however also face certain limitations, which are explored in the methodology chapter of this report.

perspective puts in contrast the openness to foreign ownership of companies in the countries in Eastern Europe and Central Asia and Latin America and the Caribbean relative to East Asia and the Pacific (figure 3.1).15

Several countries in the most open regions do not impose any restrictions in any of the sectors covered by the indicators; these include Chile, Georgia, Guatemala, and Montenegro. In contrast, economies such as China, Indonesia, Malaysia, the Philippines, Thailand,

and

Vietnam

restrict

foreign

participation in many economic sectors. The Middle East and North Africa is also a relatively restricted region, with countries such

Box 3.3: The growing role of services in GDP and FDI The share of services in the national products of most countries has been rising steadily, reaching 73% of GDP in high-income, 53% of GDP in middle-income, and 45% of GDP in low-income countries in 2006.9 The composition of FDI has also been shifting toward the service sector. Services now account for 59% of FDI inflows worldwide, up from 50% in 1990 and 25% in the 1970s.10 According to the 2009 UNCTAD World Investment Report, this shift toward services and an accompanying decline in the share of FDI in natural resources and manufacturing has been the most important change in the sectoral and industrial pattern of FDI over the past quarter century.11 The composition of services FDI itself is also changing. Until recently, it was concentrated in trade and finance, which together still accounted for 47% of the inward stock of services FDI and 35% of flows in 2002 (compared to 65% and 59%, respectively, in 1990).12 However, industries such as electricity, water, telecommunications, and business services (including IT-enabled corporate services) are becoming more prominent. Between 1990 and 2007, for example, the value of the FDI stock in electric power generation and distribution rose 34-fold; in telecommunications, storage, and transportation 31-fold; and in business services 21-fold.13 In South Africa, for instance, FDI in telecommunications and information technology has overtaken that in mining and extraction.14

as Morocco and Saudi Arabia limiting foreign capital participation in many industries. Eastern Europe and Central Asia is more open to foreign capital participation than the IAB global average in every single sector group measured by the indicators. On the other hand, East Asia and the Pacific scores lower than any other region in nearly all sectors (table 3.1). Despite

the

relatively

high

degree

restrictiveness, East Asia has a strong record in attracting FDI over the last several decades. Analysis of this apparent paradox points to the limitations of interpreting the narrow measure of the indicators, and juxtaposes the good performance of the region in FDI attraction in absolute terms versus belowaverage performance relative to the size of the economy and population (box 3.4)

Investing Across Sectors

Table 3.1: Restrictions on foreign equity ownership across sectors and regions Foreign equity ownership index (100=full foreign ownership allowed)

Sector group

East Asia & Pacific (10 countries)

Eastern Europe High-income Latin America Middle East & & Central Asia OECD & Caribbean North Africa (20 countries)

(5 countries)

South Asia

Sub-Saharan Africa

IAB sector average

(5 countries)

(21 countries)

(87 countries)

(12 countries)

(14 countries)

Mining, oil and gas

75.7

96.2

100.0

91.0

78.8

88.0

95.2

92.0

Agriculture and forestry

82.9

97.5

100.0

96.4

100.0

90.0

97.6

95.9

Light manufacturing

86.8

98.5

93.8

100.0

95.0

96.3

98.6

96.6

Telecommunications

64.9

96.2

89.9

94.5

84.0

94.8

84.1

88.0

Electricity

75.8

96.4

88.0

82.5

68.5

94.3

90.5

87.6

Banking

76.1

100.0

97.1

96.4

82.0

87.2

84.7

91.0

Insurance

80.9

94.9

100.0

96.4

92.0

75.4

87.3

91.2

Transportation

63.7

84.0

69.2

80.8

63.2

79.8

86.6

78.5

Media

36.1

73.1

73.3

73.1

70.0

68.0

69.9

68.0

Sector group1: construction, tourism, and retail

91.6

100.0

94.9

96.7

97.6

98.1

Sector group 2: health care and waste management

84.1

100.0

91.7

96.4

90.0

100.0

96.0

IAB regional average

74.4

94.3

91.2

91.6

83.5

88.2

90.2

89.3

Source: Investing Across Borders database.

Box 3.4: The apparent paradox of East Asia and the Pacific The fact that FDI has played a crucial role in supporting economic growth in parts of East Asia and the Pacific over the past 40 years is well known. Yet, in this report the average foreign equity ownership index for economies in East Asia is lower than in all other regions. Should one then infer that the relationship between overall openness to foreign equity ownership and actual FDI inflow is tenuous? The answer is no. Here is why: 1. The Investing Across Sectors indicators only measure the percentage of foreign equity ownership allowed in a sector. This is an incomplete measure of overall openness to FDI. Country X can allow 100% of foreign equity participation in a sector, yet impose any number of the dozen or so restrictions permitted under WTO agreements (such as limiting the number of licenses, or capping the value of transactions).16 Country Y can let in 75%, but with no other conditions. Which country is more open to FDI is debatable. The IAB indicators do not provide a full answer to this issue as they only focus on restrictions to foreign ownership of equity. 2. Although the foreign equity ownership index for East Asia and the Pacific is the lowest among the regions, as explained earlier in the report, actual FDI inflows are determined by a range of factors from the size and growth prospects of an economy, to low transaction costs, predictability and stability, among others. In many of these factors East Asia and the Pacific does rather well. What is certain is that countries with blanket restrictions in many sectors will get little FDI, but an average equity ceiling of around 75% appears to have been deemed sufficient for FDI to pour into East Asia and the Pacific region. It is only in relative terms, that is when compared to the average equity limit of other regions, that East Asia and the Pacific ranks low. However, it could be hypothesized that East Asia could attract even more FDI if some sectors were more open. In China and Vietnam, for example, foreign equity limit in banking is approximately 60%, and in insurance and telecommunications it is under 50%. The limits are even lower in electricity and transportation services. But again, these equity ceilings alone are not a major deterrent to FDI, and countries may feel there are good “market failure” reasons to regulate sectors whose tradability is nascent and evidence on benefits is less robust. 3. It is also the case that the performance of FDI inflows to East Asia and the Pacific is uneven, and varies with the yardstick used. According to UNCTAD, between 2000 and 2007, China, Malaysia, Singapore, and Thailand received among the highest average FDI flows in the region in absolute terms.17 However, when FDI flows and stock data are calculated on a per capita basis, only Korea, Malaysia, and Singapore stand out. China, the Philippines, and Vietnam, among others, perform below average of the 87 countries in the IAB sample. And when FDI flows or stock data are ranked relative to the economy’s size (GDP), Korea, Malaysia, Singapore, and the Solomon Islands do relatively well, while the other countries in the region rank below the average of the countries included in the IAB 2010 report. Source: Investing Across Borders.

Investing Across Borders 2010

Further

disaggregating

Investing

Across

Sectors data to the level of individual countries reveals the gap between the most open and closed economies to foreign ownership. On the one hand, more than 10% of the countries surveyed do not have any restrictions on foreign ownership in any of the sectors measured. These countries receive

Figure 3.2: Equity limits on foreign ownership of companies vary across sectors Foreign equity ownership index (100=full foreign ownership allowed) IAB global average=89.3 Light manufacturing

96.6

Health care and waste management

96.0

the other hand, many countries in the world

Mining, oil and gas

92.0

Insurance

91.2

not only limit foreign ownership in some

91.0

Banking

sectors, but altogether prohibit foreign capital

88.0

Telecommunications

participation in specific sectors. Ethiopia, the

87.6

Electricity

Philippines, and Thailand are amongst the

78.5

Transportation

world’s most restricted economies, with an

68.0

Media

indicator score of 0 for several sectors. The in one third or more of the sectors measured

95.9

Agriculture and forestry

a full index score of 100 in all sectors. On

following economies restrict foreign ownership

98.1

Construction, tourism, and retail

100

Source: Investing Across Borders database.

by the indicators: Bolivia, China, Ethiopia, Greece, India, Indonesia, Malaysia, Mexico, Morocco, the Philippines, Saudi Arabia, Sudan, Thailand, and Vietnam.

Figure 3.3: Foreign ownership of airlines is more restricted than other transportation sectors Foreign equity ownership index (100=full foreign ownership allowed) IAB global average=78.5

Results by sector As a general trend, there are very few restrictions on foreign equity ownership in manufacturing and the primary sectors

Port operation

82.4

Railway freight

82.0

and

International air

gas), whereas service sectors tend to be

Domestic air

(agriculture,

forestry,

mining,

oil

75.1 69.5 0

characterized by a larger number of limitations (figure 3.2). This variation reflects the fact that

83.4

Airport operation

100

Source: Investing Across Borders database.

FDI in manufacturing has been more common for a longer period of time with known evidence of cross-country impact. Services,

Figure 3.4: Foreign ownership in electricity generation is less restricted than in electricity transmission and distribution

in contrast, have become more tradable and liberalized in most economies only in

Foreign equity ownership index (100=full foreign ownership allowed)

recent years, and countries are less certain about the optimal balance between openness

■ Generation

■ Transmission

■ Distribution

100

and restrictiveness. Many countries view service sectors such as media, transportation,

electricity, and telecommunications as strategic assets, or industries related to national economic security. As a result, many countries tend to restrict foreign equity ownership in these sectors.

60 40 20

Of all sectors covered by the indicators, foreign ownership of TV broadcasting and newspaper companies is most restricted. In 11% of surveyed economies it is completely prohibited. In contrast, almost two-thirds of

South Asia (5)

Eastern Sub-Saharan High-income Europe & Africa OECD Central Asia (21) (12) (20)

East Asia Latin America Middle IAB global & Pacific & Caribbean East & average (10) (14) North Africa (87) (5)

Source: Investing Across Borders database.

countries allow foreign companies to own

Investing Across Sectors

100% of newspaper businesses. Even in the

It should be noted, however, that in some

line and the wireless/mobile sectors are

high-income OECD countries, many of whom

countries the renewable energy sector is only

particularly marked in Sub-Saharan Africa and

have limits on foreign ownership in these

presumed to be open to foreign capital, as it is

Middle East and North Africa (figure 3.6).

sectors, all countries allow foreign capital

not explicitly covered by energy or investment

participation in newspaper publishing, and

legislation. As a consequence, it is unclear

only Spain completely bans foreign companies

whether the relative absence of foreign

from entering TV broadcasting.

ownership restrictions in alternative energy is

The

second

most

restricted

sector

transportation, measured by the indicators including railway freight, air transportation

a result of a conscious national policy choice, or whether these sectors are too new to have yet been properly regulated.

Foreign ownership is largely unrestricted in the primary sectors. Agriculture is the least restricted industry, followed by mining and forestry. In 5 of the 7 regions measured by the indicators, there are no limits on foreign ownership in agriculture. Only Mexico and the following countries in East Asia and the

(domestic and international), and airport

In telecommunications, fixed-line infrastructure

Pacific have ownership restrictions in this

and port ownership (figure 3.3). Of these,

and services sectors are less open to foreign

sector: Indonesia, Malaysia, the Philippines,

foreign ownership is most restricted in air

ownership than the wireless/mobile sector.

and Thailand. Oil and gas sector has

transportation. In particular, foreign capital

Provision of wireless services is the most open

relatively more restrictions, particularly in the

participation in domestic airlines tends to be

business activity within the telecommunications

Middle East and North Africa.

limited in many countries across the globe.

sector. The differences between the fixed-

Foreign equity in the air transportation sector is most severely restricted in the high-income OECD countries. In contrast, these sectors are mostly open in Sub-Saharan Africa. The electricity sector presents an interesting case.

Foreign

generation

ownership less

restricted

electricity than

the

downstream activities of electricity transmission and distribution (figure 3.4). The most severe restrictions on foreign ownership of electricity

Figure 3.5: Most regions welcome FDI in alternative energy Foreign equity ownership index (100=full foreign ownership allowed) ■ Hydro ■ Biomass ■ Solar ■ Wind ■ Coal 100 80 60

transmission and distribution companies can be found in Middle East and North Africa and

East Asia and the Pacific. In comparison to the other service industries, electricity also has the highest concentration of public monopolies, compounding the effect of equity restrictions on FDI access. As climate-sensitive sectors rapidly gain importance on a global scale, IAB has

20 0

South Asia (5)

Eastern Sub-Saharan High-income Europe & Africa OECD Central Asia (21) (12) (20)

East Asia Latin America Middle IAB global & Pacific & Caribbean East & North average (10) (14) Africa (87) (5)

Source: Investing Across Borders database.

placed a particular emphasis on measuring foreign ownership restrictions in alternative energy

sectors—that

is,

generation

electricity from renewable sources, including solar, wind, hydro, and biomass. Results demonstrate that all regions of the world are highly open to foreign capital participation in

Figure 3.6: Foreign ownership in the fixed-line telecommunications sector is more restricted than in the wireless/mobile sector in Middle East and North Africa and Sub-Saharan Africa Foreign equity ownership index (100=full foreign ownership allowed) ■ Wireless/mobile telecommunications ■ Fixed-line telecommunications

these sectors (figure 3.5). On a relative scale, Eastern Europe and Central Asia region and South Asia are most open, with hardly any restrictions. In contrast, East Asia and the

94.0

Middle East & North Africa

74.0

Pacific as well as Middle East and North Africa are more restrictive. In most countries, the laws afford investors the same degree of access to alternative energy generation as they do to coal-based electricity generation.

Investing Across Borders 2010

86.3

Sub-Saharan Africa

82.0 0

Source: Investing Across Borders database.

100

All measured manufacturing sectors are almost universally open

prominent in service sectors than in manufacturing and other export-

to FDI in all countries, including light manufacturing, agribusiness,

oriented industries. In particular, many sectors that are considered

pharmaceuticals, and publishing. Whereas the first 3 sectors are

of strategic importance to countries, such as media, transportation,

almost universally open to foreign capital participation, publishing is

electricity, and telecommunications, still show a relatively high level

subject to foreign ownership restrictions in many countries around the

of restrictiveness. In terms of the regional differences, economies in

globe. In particular, economies in East Asia and the Pacific tend to

Eastern Europe and Central Asia as well as Latin America and the

restrict foreign equity ownership in this industry. Middle East and North

Caribbean tend to have fewer restrictions than economies in East Asia

Africa, South Asia, as well as the high-income OECD countries also

and the Pacific and the Middle East and North Africa.

achieve a lower than average score in publishing. In summary, the analysis of Investing Across Sectors data highlights the fact that restrictions on foreign equity ownership are still more Figure 3.7: Statutory restrictions on foreign equity ownership limit FDI

Net FDI inflows as % of GDP, 2005-2007 average

Foreign equity ownership index and net FDI inflows as % of GDP

Simple correlation analysis shows a weak but positive and statistically significant association between FDI and openness to foreign equity ownership (figure 3.7).18 Countries that restrict foreign ownership of companies do not attract much FDI, while many countries—such as Chile, the Czech Republic, and Georgia—that have opened up major sectors of their economies have attracted significant FDI. These results do not imply a causal relationship between openness and FDI, nor do

30 MNE 25

they indicate a direction of the association. There is also a negative and statistically significant association

between openness to foreign equity ownership and country size (figure GEO

3.8). Countries with smaller populations or markets—such as Chile, Montenegro, and Rwanda—have opened up more of their sectors

CHL CZE

THA

5 0

Conclusions and implications

ETH 40

PHL 60

to FDI. In contrast, larger economies—such as China, India, and Mexico—can rely more on the pull of their large markets to attract investment.

100

Foreign equity ownership index

Overall, the openness of sectors to foreign equity ownership—as measured by the Investing Across Sectors indicators—is a necessary

Note: Correlation coefficient is 0.267, significant at the 5% level for CHL (Chile), CZE (the Czech Republic), ETH (Ethiopia), GEO (Georgia), MNE (Montenegro), PHL (the Philippines) and THA (Thailand). Source: Investing Across Borders database; World Bank Group World Development Indicators database.

but insufficient condition for attracting FDI. Having a relatively closed economy (as in Ethiopia or Sudan) restricts and in some cases prohibits FDI in certain sectors. On the other hand, having an economy completely open to foreign capital participation (as in Afghanistan,

Figure 3.8: Small economies have fewer restrictions on foreign equity Foreign equity ownership index and log of population

Foreign equity ownership index and log of GDP 14

10 9

Log of population, 2008

Log of GDP, 2005-2007 avergae

11 10 9 8

7 6 5

7 6

100

Foreign equity ownership index Note: Correlation coefficient is –0.352, significant at the 1% level. Source: Investing Across Borders database; World Development Indicators database.19

100

Foreign equity ownership index Note: Correlation coefficient is –0.497, significant at the 1% level. Source: Investing Across Borders database; World Development Indicators database.

Investing Across Sectors

Bangladesh, Kosovo, or Senegal) does not guarantee success in attracting more FDI. Other factors are also involved, including market size, infrastructure quality, political stability, and economic growth potential. For political, economic, security, cultural, and other reasons some countries have restricted foreign ownership in some sectors. But the Investing Across Sectors indicators illustrate 2 key points. First, until the recent financial crisis, the global trend was to liberalize a growing range of economic sectors. Second, in many

Investing Across Borders 2010 is a new initiative that we hope to continue to improve in the future. IAB plans to leverage the data for research and analysis of relationships between indicators and various socio-economic and political measures of countries’ development to better understand drivers and impacts of business environment reforms. IAB will also consider expanding and deepening the scope of its indicators. We welcome your comments and feedback.

countries the benefits of openness to foreign capital participation have trumped reasons for restricting certain sectors from foreign ownership. For every country that limits or prohibits foreign equity ownership in certain sectors, several others with similar features allow unrestricted foreign ownership. However, an open economy cannot substitute for a well-regulated economy with strong investment climate fundamentals such as well-functioning institutions, economic and political stability, respect for the rule of law, and other key drivers of investment. The main goal of the Investing Across Sectors indicators is to help countries benchmark their policies against those of their peers—and to use these comparisons to inform their policy decisions.

Investing Across Borders 2010

Endnotes 1 The Methodology section of this report available online provides more details about the nature and structure of the Investing Across Sectors indicators as well as on the aggregation methods employed in the construction of the indicators. 2 Foreign Direct Investment database, UNCTAD (http://www.unctad.org); World Development Indicators database, World Bank Group, (http://www.worldbank.org). 3 Christiansen (2004). 4 Hoekman (1997); Pierre Sauvé and Karsten Steinfatt, “Assessing the Scope for Further Investment Regime Liberalisation: An Analysis Based on Revealed Liberalisation Preferences,” OECD, unpublished.

5 Pacific Economic (1995).

Cooperation

Council

6 Hardin and Holmes (1997). 7 Golub (2003), UNCTAD (2006b). 8 Ibid. 9 World Development Indicators database, World Bank Group, (http://www.worldbank.org). 10 UNCTAD (2004), UNCTAD (2009). 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid. 15 The data are reported through sector-specific foreign equity ownership indexes, where 100 denotes a sector with no equity restrictions on FDI. 16 World Trade Organization, Guidelines for the scheduling of specific commitments under the General Agreement on Trade in Services (GATS) (http://www.wto.org/english/tratop_e/ serv_e/sl92.doc). 17 UNCTAD, Key Data from WIR Annex Tables, (http://www.unctad.org/templates/Page. asp?intItemID=3277&lang=1). 18 For the purposes of this analysis, net FDI inflows expressed as a percentage of GDP have been considered in order to account for the varying sizes of economies across the data sample. 19 Ibid; Adler and Hufbauer (2008), Lim (2001).

Starting a Foreign Business In contrast, setting up a foreign-owned subsidiary in Canada requires Interesting facts

only 6 days and 2 procedures (adding 1 procedure and 1 day to the

In most countries measured by Investing Across Borders,

process required of a domestic company). The company first files for

starting a foreign company takes longer and requires more steps than starting a domestic company.

federal incorporation and provincial registration via Industry Canada’s

The most common additional procedure required of foreign

Canada of the investment. The notification can be filed up to 30 days

companies is the foreign investment approval or declaration, required in 48% of the 87 surveyed countries.

In Eastern Europe and Central Asia, the additional procedures required of foreign businesses add only 4 days on average to the total start-up time.

Georgia and Rwanda have the fastest process for starting a foreign business of all measured countries.

Only 3 of the 87 surveyed countries do not have their commercial laws and regulations publicly available online.

Companies are able to download business registration forms in 59% of all measured countries, but only 18% of them offer electronic registration services.

Four out of the 87 surveyed countries do not allow foreign companies to hold foreign currency bank accounts.

Haiti is the only IAB country where the minimum capital

requirements are more favorable for foreign than domestic companies.

Source: Investing Across Borders 2010.

online Electronic Filing Centre (5 days). It then notifies Investment after the investment is made. Anywhere in the world, a company deciding on where to establish its next subsidiary may be attracted by large markets, natural resources, or low input prices. Beyond these factors, however, as highlighted by the previous examples, a country’s regulatory framework can also greatly affect the investment process. There is little a government can do about its country’s size or natural resource endowment. It can, however, create a legal and regulatory environment that makes the country more attractive to foreign direct investment (FDI). Easing business start-up is one important area where the government can implement positive changes. Companies seek to avoid administrative hurdles when setting up business in foreign countries. In a survey of companies worldwide, 16% of firms polled identified business licensing and permits as a major constraint (figure 4.1).2 In addition, a recent study measuring restrictions on FDI in the service sector finds that the difficulty of navigating the various requirements involved in starting a foreign business can have an important impact on companies’ investment decisions.3 The starting a business indicator of the Doing Business project has shown that establishment procedures for domestic enterprises vary

How the process of setting up a foreignowned subsidiary matters for foreign direct investment A foreign company setting up a subsidiary in Angola might assume that, like a local enterprise, it will be able to start operating in about 68 days.1 The reality, however, is that it can take as long as 263 days to establish a wholly foreign-owned subsidiary in Angola’s capital, Luanda. In addition to the 8 procedures required of a local company (which include depositing the initial capital in a bank, paying the registration fee, and obtaining the commercial operations permit, among others), it takes another 4 procedures for a foreign company to get started. After authentication of the parent company’s documents, the planned investment project is submitted for approval to the National Agency for Private Investment (ANIP) as well as, for larger investments, to the Council of Ministers. This approval process can take up to 180 days. After the investment is approved, the foreign company applies for a certificate of capital importation with the National Bank of Angola. This process takes about 15 days. Finally, a foreign company wanting to import and export goods must request a trade license from the Ministry of Commerce, which adds a final 14 days to the process.

widely from country to country. In a study reviewing the effects of entry regulation on domestic small and medium enterprises, the authors note that, “[i]n a cross-section of countries…stricter regulation of entry Figure 4.1: Business licensing can be perceived as a major constraint Percentage of firms identifying business licensing and permits as a major constraint Middle East & North Africa

27.94

Latin America & the Caribbean

15.89

Eastern Europe & Central Asia

15.81

Global average

15.55

Sub-Saharan Africa

15.52 11.93

South Asia East Asia & Pacific

10.83

High-income OECD

9.72 0

Source: Enterprise Surveys database, World Bank Group.

Starting a Foreign Business

is associated with sharply higher levels of

of starting a business has elicited the most

procedures. They are designed to reward

corruption, and a greater relative size of the

reforms. Since 2004, 134 economies have

an effectively regulated environment, provide

unofficial economy.”4 The same argument can

facilitated the start-up process through 254

examples of good practices that protect

be made by analogy for foreign companies,

reforms. Some of the advantages of easier

markets

which, as pointed out in that same study,

start-up procedures include, among others,

and suggest improvements in areas where

frequently face additional verifications and

greater entrepreneurship, higher productivity,

certain administrative requirements add little

other procedures.

increased growth and investment rates, and

value. They build on the data gathered by the

lower perceived level of corruption.

Doing Business starting a business indicator

Similarly, legal and administrative requirements

study on FDI found that foreign investments are often subject to official approvals or registration requirements. Where investment approvals are required, additional complications often arise from dispersal of authority. While some countries have centralized their approvals in a single agency, many countries require multiple-agency approvals or worse yet, approvals by a minister or prime minister. Navigating through the approval process in certain countries can take months or even years, and the uncertainty of the outcome, or even the process, dissuades potential investors from applying.6 Of the 10 indicator topics covered by Doing Business, the one that measures the process

Introducing the Starting a Foreign Business indicators While some argue that strict entry regulations provide

legal

protection,

global

investors,

interest to foreign investors. Consideration is given to both the regulatory framework and its implementation, thus ensuring a more comprehensive measure of the business environment faced by investors.

require costly and complex procedures.7 The

Structure of the Starting a Foreign Business indicators

Investing Across Borders (IAB) data confirm

The Starting a Foreign Business indicators

that fast and efficient start-up systems are often

comprise 3 components measuring the time

found in investor-friendly countries known for

needed, procedural steps required, and

their effective legal frameworks.

regulatory regime for establishing a foreign-

practice shows that legal certainty does not

The Starting a Foreign Business indicators

owned subsidiary (box 4.1).

quantify the procedural burden that foreign

The Starting a Foreign Business indicators

companies face when entering a new

do not cover all aspects of countries’ start-

market. The indicators provide information

up regimes for foreign companies. The

for countries looking to reform their start-up

methodology chapter of this report provides an

Box 4.1: What the Starting a Foreign Business indicators measure 1. Procedures (number): This indicator covers the number of procedural steps involved

extensive list of the indicators’ substantive and methodological limitations, including guidance for how to interpret and use the data.

in establishing a wholly foreign-owned subsidiary. Both pre- and post-incorporation

Case study assumptions

procedures that are officially required for a foreign investor to formally operate a busi-

To ensure consistency and comparability of

ness are recorded.

data across all 87 countries, the Starting a

2. Time (days): This indicator measures the number of days needed to go through each of the procedural steps for establishing a subsidiary of a foreign company. 3. Ease of establishment index: This index evaluates the regulatory regimes for business start-up. It focuses on the following areas:

Restrictions to the composition of the board of directors or appointment of managers.

Requirements forcing the use of a local third party (counsel, notary, investment promotion agency) during the establishment process.

Possibility to expedite establishment procedures through an official channel (availability of fast-track procedures).

Requirement of an investment approval (nature of investment approval requirement, possibility of appeal, minimum required size of investment, period of validity).

Limitations of the business registration process. Restrictions on holding a foreign currency commercial bank account. Minimum capital requirements. Availability of electronic services (online laws, regulations, documents, and registration).

overburdening

and highlight areas that are of specific

for establishing foreign-owned subsidiaries also vary in scope and stringency.5 An IFC

without

Investing Across Borders 2010

Foreign Business indicators are based on a case study that sets out assumptions about a foreign company hoping to establish a local subsidiary. The most critical elements of this case study are provided below. The methodology section of this report available online provides additional general case study assumptions. The foreign company:

Plans to manufacture electric household appliances (such as refrigerators, electric or microwave ovens).

Is domestically incorporated in the largest business city as a limited liability company (LLC).

Plans an initial capital investment of $10 million.

Plans to initially employ 50 people, including 3 expatriate managers.

Is not applying to receive any special benefits and privileges (extraordinary tax holidays/breaks/exemptions, customs duty exemptions), apart from the investment incentives available automatically on a legal basis.

Will not be investing in an export process-

Results of the Starting a Foreign Business indicators

Opening a bank account. Registering with a business registry. Obtaining a tax identification number (tax

Starting a foreign-owned business

Registering with retirement and pension

Perhaps unsurprisingly, establishing a local subsidiary of a foreign company takes longer and requires more steps than establishing a domestic enterprise. On average, this process

ing zone (EPZ), special economic zone

takes a foreign business 14 more days and 2

(SEZ), or any other zone governed by a

more procedures than a domestic enterprise

special FDI regime.

in that same country (figure 4.2). The results

Plans to sell its manufactured product locally as well as to export it.

Will import about 60–70% of the value of its production inputs other than its capital equipment.

Key laws evaluated by the Starting a Foreign Business survey Below are some of the laws evaluated by the Starting a Foreign Business indicators (box 4.2). Some countries have enacted specific investment-related laws, while others have included relevant stipulations in various

are most striking in Sub-Saharan Africa and Middle East and North Africa, where it takes twice as long to start a foreign company as it does a domestic one. Overall the process takes longest for companies in Latin America and the Caribbean, where over 2 months are required, on average, to establish a domestic or a foreign-owned business. In contrast, the process of starting a wholly foreign-owned subsidiary is rather similar to establishing a domestically owned company in the highincome OECD countries and in Eastern

For domestically-owned small and medium

countries in the IAB sample have made these

enterprises, some of the most common

laws publicly available online.

procedures include (but are not limited to):8 �

Searching for a company name. Notarizing articles of association.

Investment-related laws: Investment

codes, investment promotion laws and regulations, foreign investment acts.

Company and business organization

laws: Commercial codes, foreign company laws, company and legal entities registration laws, business laws and company laws. (corporations), laws for business associations, foreign exchange transactions laws, private international law codes, trade laws, tax laws, labor laws.

funds.

Registering for social security. The Starting a Foreign Business indicators of the Investing Across Borders project document the additional procedures required of foreign companies looking to engage in international business

These

procedures

Authentication of the parent company’s legal documents abroad.

Investment approval or notification. Certificate of capital importation or registration with the central bank.

Trade (import/export) license or customs registration certificate (the assumption is that the foreign company will want to engage in international trade).

start a foreign business that wants to engage in international trade, 62 days longer than a domestic business. In addition to the regular procedures required of a domestic company (such as registration certification, company seal, statistics, and tax registration),

Figure 4.2: It takes longer to start a foreign business Number of days to start a foreign and domestic business, including trade licenses ■ Procedures required only of a foreign company ■ Procedures required for trade ■ Procedures required of both domestic and foreign companies 80 70

5 9 19

60 50

5 16

40 30

60 44

20 23

9 5

6 5

Civil codes and civil procedure

Ministerial and presidential decrees. Constitutions.

Source: Doing Business 2010 and Investing Across Borders database.

codes/rules.

transactions.

include:

In China, for instance, it takes 99 days to

Europe and Central Asia.

business and civil laws. A vast majority of the

Box 4.2: Key laws relating to Starting a Foreign Business indicators

office registration).

Latin America East Asia & Caribbean & Pacific (14) (10)

Sub-Saharan IAB global Africa average (21) (87)

South Asia (5)

2 1

9 0.2 9

Eastern High-income Middle Europe & OECD East & Central Asia (12) North Africa (20) (5)

Starting a Foreign Business

Figure 4.3: Starting a foreign business in Shanghai, China, takes almost 3 times as long as starting a domestic one Starting a foreign business in China â&#x20AC;&#x201C; examples of procedures required of foreign firms 100 90

Authentication of documentation overseas

10 2

Investment approval 70

Days

50 40 5

30 20

Customs registration certificate/other foreign trade licenses

â&#x2013; Procedures required of domestic and foreign companies

Foreign exchange registration certificate

â&#x2013; Additional procedures required only of foreign companies or companies involved in cross-border trade.

Financial certificate for foreign investment

10 0

1 2

1 1

Procedures Source: Doing Business 2010 and Investing Across Borders database.

Box 4.3: Availability of electronic services

Figure 4.4: Start-up times vary greatly Number of days to start a foreign-owned business Angola 212

Haiti 179

Venezuela, RB 166

Brazil 108

Papua New Guinea

China

Vietnam Cambodia

Indonesia

86 83

Bosnia & Herzegovina

France

Singapore

Egypt, Arab Rep.

Turkey

Macedonia, FYR

Belarus

Albania

Afghanistan

Canada

Georgia

Only 3 countries (Ethiopia, Ghana, and Liberia) of the 87 surveyed do not have their laws available online. In all other IAB countries, some or all of the laws relevant to establishing a foreign business (such as investment codes, commercial codes, civil codes, civil procedure codes) are available online.

Rwanda 0

Source: Investing Across Borders database.

The convenience and efficiency of access to online information is important to all businesses, but in particular to foreign Days investors who are not physically present in the country. For this reason, it is helpful if information on laws and regulations are available online. Better yet is the availability of registration forms and other related documents for download, and the possibility of e-registration and monitoring.

263

Investing Across Borders 2010

100

150

200

250

300

Companies are able to download registration forms in 59% of IAB countries, but only 18% of them offer electronic registration services. With the exception of Greece and Spain, all surveyed high-income OECD economies offer downloadable registration documents. In Sub-Saharan Africa, less than 30% of the countries have documents available for download and only Mauritius allows online company registration.

Figure 4.5: All surveyed countries in South Asia offer downloadable registration documents

approval, a customs registration certificate company involved in international trade), a financial certificate for foreign investment,

29%

and a foreign exchange registration certificate

36%

Latin America & Caribbean (14)

documentation overseas, obtain an investment (this would also be required of a domestic

Availability of registration documents online by region Sub-Saharan Africa (21)

a foreign company must also authenticate its

(figure 4.3). 59%

IAB global average (87)

Despite the additional requirements for foreign

65%

Eastern Europe & Central Asia (20) East Asia & Pacific (10)

80%

Middle East & North Africa (5)

80%

companies, some countries manage to keep their start-up process short. Figure 4.4 shows the number of days required to start a foreign company in the fastest and slowest countries

83%

High-income OECD (12)

100%

South Asia (5) 0%

20%

40%

60%

80%

100%

measured by IAB. Providing electronic services is one of the tools that countries can use to make administrative

Source: Investing Across Borders database.

processes more efficient and transparent. Electronic services do not necessarily require Figure 4.6: Investment approval is the most time consuming additional procedure for foreign investors

costly and complex technological solutions. Any public agency with a Web site can start by posting the key information online, and, over time, enabling the provision of some of

Average time required to comply with additional procedures, in days

its servicesDays electronically. Box 4.3 assesses

Investment approval

how common it is for countries to make their

Trade license

laws and other information available on the

Certificate of capital importation

Internet, and to allow online registration.

8 0

IAB finds that investment approvals, foreign exchange certificates, and trade licenses are among the most common procedures

Source: Investing Across Borders database.

required of foreign companies in addition to the registration requirements for domestic Figure 4.7: 20% of all IAB countries require an investment approval

firms. On average, these 3 procedures take 27, 9, and 8 days, respectively, in IAB countries (figure 4.6). Authentication of the

Percentage of countries where an investment approval is required

documents of the foreign parent company is

High-income OECD (12) 0%

also a common start-up procedure in many

Eastern Europe & Central Asia (20) 0%

countries. The IAB team has, however,

Latin America & Caribbean (14) 0%

excluded this administrative step from figure 4.6 because the time needed to comply

20%

IAB global average (87)

with this requirement depends on a number

38%

Sub-Saharan Africa (21) Middle East & North Africa (5)

40%

South Asia (5)

40%

of factors beyond the control of the foreign company and authorities in the host country. 50%

East Asia & Pacific (10) 0

Note: 0% denotes that none of the countries in that region require an investment approval. Source: Investing Across Borders database.

Investment approval and notification requirements Many countries require foreign investors to go through an approval or authorization process before proceeding with their planned investment. 20% of the 87 IAB countries require such an approval (figure 4.7). In

Starting a Foreign Business

East Asia and the Pacific, 50% of the countries surveyed require an

Vietnam, for example, the application for an investment certificate for

investment approval, namely China, Indonesia, Papua New Guinea,

a foreign-owned LLC must include a specific business project (including

Solomon Islands, and Vietnam.

a feasibility study and environmental assessment) and can take up to 2

Obtaining an approval takes on average 27 days. In some countries this can take as long as 6 months and in others as little as 2 days. In

months. On average, the process takes longest in Sub-Saharan Africa and is fastest in the Middle East and North Africa (figure 4.8). Figure 4.9 illustrates how long it takes on average to get an investment

20 16

Investing Across Borders 2010

15 10

N/A

N/A High-income OECD (12)

Latin America & Caribbean (14)

Middle East & North Africa (5)

N/A South Asia (5)

Eastern Europe & Central Asia (20)

Note: N/A denotes regions in which investment approvals are not required. Source: Investing Across Borders database.

Figure 4.9: Obtaining an investment approval can take 180 days in Angola Number of days to get an investment approval in the Sub-Saharan African countries where it is required 200

180

150

100

South Asia Afghanistan, Bangladesh, India, Pakistan, Sri Lanka.

31 17

0 Angola

High-income OECD Austria, Canada, Czech Republic, France, Greece, Ireland, Japan, Korea, Rep., Slovak Republic, Spain, United Kingdom, United States.

Source: Investing Across Borders database.

1 Ethiopia

Middle East and North Africa Egypt, Arab Rep., Morocco, Saudi Arabia, Tunisia, Yemen, Rep.

Mauritius

Latin America and the Caribbean Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Peru, Venezuela, RB.

Uganda

Kosovo, Kyrgyz Republic, Macedonia, FYR, Moldova, Montenegro, Poland, Romania, Russian Federation, Serbia, Turkey, Ukraine.

Ghana

Herzegovina, Bulgaria, Croatia, Georgia, Kazakhstan,

Mali

Eastern Europe and Central Asia Albania, Armenia, Azerbaijan, Belarus, Bosnia and

Average time required to obtain an investment approval, by region

Sudan

East Asia and the Pacific Cambodia, China, Indonesia, Malaysia, the Philippines, Papua New Guinea, Singapore, Solomon Islands, Thailand, Vietnam.

Figure 4.8: Investment approvals take longest in SubSaharan Africa

East Asia & Pacific (10)

Sub-Saharan Africa Angola, Burkina Faso, Cameroon, Côte d’Ivoire, Ethiopia, Ghana, Kenya, Liberia, Madagascar, Mali, Mauritius, Mozambique, Nigeria, Rwanda, Senegal, Sierra Leone, South Africa, Sudan, Tanzania, Uganda, Zambia.

be as short as 1 day in Ethiopia.

Cameroon

Following is the list of the countries measured by IAB. Those in bold font are party to the Convention. Those in regular font are not.

Angola, the investment approval can take up to 180 days, while it can

IAB global average (87)

Currently, a total of 98 states are party to the Hague Apostille Convention—38 of them are countries surveyed by IAB.

For the same procedure, there is a range of possible time frames. In

IAB regional average

The Hague Apostille Convention of 1961 facilitates the legalization requirements of foreign public documents between states which are party to the Convention. The legalization process is meant to satisfy a foreign court or person that the document is indeed what it declares itself to be. The convention has replaced the cumbersome formalities of this lengthy process with the issuance by a single government entity of an apostille certificate that authenticates the origin of the public document. For companies, this is especially useful as it greatly facilitates the recognition of the parent companies’ documents during the registration process in a new country. 9

approval in the 8 Sub-Saharan African countries where it is required.

Sub-Saharan Africa (21)

Box 4.4: The Hague Apostille Convention

Some countries require only a notification or declaration of the investment. Most commonly such a notification is made to a ministry of trade or commerce or the central bank. This

Figure 4.10: Incoming foreign capital requires notification in many countries Percentage of IAB countries that require incoming foreign capital registration, by region

does not delay the planned investment project

South Asia (5) 0%

and can typically be done in conjunction with other start-up procedures. In Bosnia and Herzegovina, for example, before a local

High-income OECD (12)

10%

Eastern Europe & Central Asia (20)

26%

IAB global average (87)

subsidiary established by a foreign company is registered with the court, it must be

Sub-Saharan Africa (21)

registered with the Ministry of Foreign Trade

Middle East & North Africa (5)

40%

and Economic Relations. The Ministry keeps

East Asia & Pacific (10)

40%

a registry of all foreign investments and then

Latin America & Caribbean (14)

confirms the notification to the court.

Capital importation requirements

29%

57% 0

Note: 0% denotes that none of the countries in that region requires a foreign capital notification. Source: Investing Across Borders database.

In most countries, companies that bring in foreign capital require some kind of authorization. Usually, foreign investors must have their investment capital or external loans registered with the national bank of the country

Figure 4.11: Importing capital takes only 1 day in high-income OECD IAB countries Number of days it takes on average to complete a foreign capital registration, by region 12

in which they are investing. In many cases, this registration is required for the purposes of future payments abroad or the repatriation of profits when necessary. Some form of capital importation notification or certificate is required in 26% of all IAB

9 8

countries (figure 4.10). While it is not required in any of the South Asian countries surveyed by IAB, 57% of Latin America and the Caribbean countries have some form of notification requirement, usually a registration with the central bank. On average, it takes 7 days for this registration

2 0

1 N/A South Asia High-income Middle Latin (5) OECD East & America & (12) North Africa Caribbean (5) (14)

IAB global average (87)

Eastern Sub-Saharan East Asia Europe & Africa & Pacific Central Asia (21) (10) (20)

Note: N/A denotes regions in which notifications are not required. Source: Investing Across Borders database.

to become effective (figure 4.11). In Korea, under the Foreign Investment Promotion Act of Korea, cash contributions in foreign currency must be reported to, and cleared by Korea Trade-Investment Promotion Agency (KOTRA) or a foreign exchange bank. This usually takes only 1 day. In Brazil, registration with the Central Bank can be done online. The Central Bank does not need to issue an approval of the registration but merely acts as a receiver of the appropriate information. A foreign company must be registered prior to making any investments in its subsidiary in Brazil. In RepĂşblica Bolivariana de Venezuela, investment registration is necessary in order to request authorization to purchase foreign

currency at the official exchange rate and

of all IAB countries require companies to get a

repatriate dividends, proceeds of capital

trade-related license or authorization in order

reductions, or sale of shares covered by such

to import and export (figure 4.12). These

registration. In Ghana, a local authorized

licenses are most common in Latin America

dealer bank must confirm the transaction to

and the Caribbean (required in 79% of IAB

the Bank of Ghana, which in turn confirms the

countries) and in Sub-Saharan Africa (required

transaction to Ghana Investment Promotion

in 81% of IAB countries).

Centre for registration purposes.

Trade licenses and other customsrelated procedures As mentioned earlier, the IAB case study assumes a foreign company interested in importing and exporting goods. Almost half

Obtaining a trade license takes on average 9 days (figure 4.13). In many countries, it is a simple online application (in Thailand, for example, registration can be done online and is issued immediately). In others, it can take longer. In Brazil, Honduras, South Africa, and Zambia the process can take up to a month.

Starting a Foreign Business

The Latin America and the Caribbean provides

Figure 4.12: Half of the IAB countries require a trade license for international trading

a telling example of the differences among countries in how long it takes to obtain a trade license. In Brazil, the process of registering

Percentage of IAB countries that require a trade license, by region

with the Integrated Foreign Trade System of the Federal Tax Authority (RADAR—Registro e

20%

Middle East & North Africa (5) Eastern Europe & Central Asia (20)

25%

High-income OECD (12)

25%

Rastreamento da Atuação dos Intervenientes Aduaneiros) can take as long as 40 days. In

East Asia & Pacific (10)

40%

South Asia (5)

40%

Honduras, companies that want to introduce foreign raw material into their factory must submit an application with the Industry and Commerce Secretariat of the Ministry of

49%

IAB global average (87) Latin America & Caribbean (14)

Finance. This can take a month. On the

79%

Sub-Saharan Africa (21)

other hand, the process takes only 2 days in

81% 0

Bolivia, Colombia, Costa Rica, Ecuador, and

100

Nicaragua, and only 1 day in Guatemala.

Source: Investing Across Borders database.

The discussion thus far has focused on the various

Figure 4.13: International trade licenses can take as little as 1 day

steps

required

start a foreign company. The laws of each

Number of days it takes on average to obtain a trade license, when required, by region

country also regulate other aspects of the

establishment process, such as composition of

12 12

the board of directors, possible requirements

to use local third parties, or minimum capital

requirements. The rest of this chapter presents IAB results in these areas.

8 6 4

2 0

administrative

1 East Asia & Pacific (10)

Latin Sub-Saharan America & Africa Caribbean (21) (14)

South Asia (5)

IAB global High-income Eastern Middle average OECD Europe & East & (87) (12) Central Asia North Africa (20) (5)

Source: Investing Across Borders database.

Restrictions on nationality or residency of company board members or managers Many countries impose certain conditions on the composition of the board of directors or the appointment of managers of a company (table 4.1). These restrictions, though not targeted

foreign-owned

companies,

mostly deal with issues of nationality and Figure 4.14: Obtaining a trade license takes longest in Brazil

residence, and are hence particularly relevant

Number of days it takes on average to obtain a trade license in Latin America and the Caribbean 45 40

countries require the directors or managers of foreign-owned companies to be nationals

or permanent residents of the country of

incorporation. Such requirements limit the

foreign companies’ freedom to appoint any

executives that the parent company feels

20 15

would be most competent in managing the

local subsidiary’s operations.

Source: Investing Across Borders database.

Investing Across Borders 2010

Colombia

Costa Rica

Ecuador

Nicaragua

Guatemala

IAB regional average

Venezuela, RB

Mexico

Honduras

Argentina

Brazil

Bolivia

for foreign companies. Specifically, some

Table 4.1: Examples of restrictions on nationality or residency of company board members or managers in IAB countries

Required use of a local third party It is unlikely that a large company establishing a subsidiary in a foreign country will want

Country

Conditions

Brazil

Executive Officers of Brazilian companies must be either Brazilian citizens or foreigners who hold a permanent resident visa.

Depending on its understanding of the local

Canada

Under the Canadian Business Corporation Act, at least 25% of the directors must be resident Canadians.

able to do it alone with its in-house counsel.

Colombia

Only 20% of the managerial workforce can be foreignersâ&#x20AC;&#x201D;this restriction will extend to directors and executive officers if they are employees.

Egypt, Arab Rep.

At least one manager must be an Egyptian national (unless the company is established under the Law of Investment Guarantees and Incentives of 1997).

Greece, Madagascar, and Mauritius

At least one of the directors must be a resident.

Honduras

The tax authority requires the legal representative of the company to have a residence permit in order to issue a Tax Identification Card. This process is burdensome and can take months. As a result, many companies name a Honduran representative then change the bylaws in order to elect the desired representative.

to do so without consulting a local lawyer. laws and regulations, it might, however, be Certain countries allow this, while others require going through a local counsel or an investment promotion agency for certain start-up procedures, a requirement that might burden foreign companies with unnecessary expenses and lengthy delays. This is the case mainly in the Middle East and North Africa

The director of human resources must be an Indonesian national. In practice, the Minister of Law and Human Rights only approves the foreign-owned legal entity if its board of directors contains at least one or more Indonesian nationals.

Indonesia

Ireland

An Irish company is required to have at least one director who is a resident of the European Economic Area.

Slovak Republic

A foreign member of the board of directors or executive officer who is not a citizen of the member states of the European Union or the OECD requires a residency permit.

and Latin America and the Caribbean. In contrast, it is not a requirement in any of the countries in South Asia or Eastern Europe and Central Asia surveyed by IAB. In Latin America and the Caribbean, local professionals must conduct the registration process in 8 of the 14 IAB countries. In Argentina, a notary public is involved in the incorporation process, either by certifying signatures or granting a deed of incorporation.

South Africa

The Broad-Based Black Economic Empowerment Act urges companies to have meaningful representation of previously disadvantaged groups.

In Brazil, all articles of incorporation must be

Philippines

The number of directors can be no fewer than 5 and no more than 15, the majority of whom should be residents.

Brazilian Bar Association. In Chile, Peru, and

Zambia

At least 50% of the directors must be residents.

organizational documents as a requirement

signed by an attorney duly enrolled with the Nicaragua, a local lawyer must draft the for notarization.

Source: Investing Across Borders database.

In 8 of the 21 Sub-Saharan African IAB Figure 4.15: Foreign investors can establish a subsidiary on their own in South Asia and Eastern Europe & Central Asia

countries, foreign companies are required to go through local representatives in order to establish a company. In Cameroon, the

Required use of local third party, by region

company must go through a local notary. In Angola, the law requires foreign companies to

South Asia

contract local accountants, audit companies,

Eastern Europe & Central Asia

and legal counsel. In Kenya, the Advocates Act

High-income OECD

requires that an advocate of the High Court of

East Asia & Pacific

10%

Kenya prepare and submit the incorporation documentation. In Nigeria, only a local

25%

IAB global average

counsel accredited by the Corporate Affairs

40%

Middle East & North Africa

Commission can incorporate companies.

43%

Sub-Saharan Africa

In some cases, investors are required to

57%

Latin America & Caribbean 0

Note: 0% denotes that none of the countries in that region requires foreign companies to go through a local third party to establish themselves. Source: Investing Across Borders database.

go through the local investment promotion authority. In Saudi Arabia, for example, the Saudi Arabian General Investment Authority (SAGIA) is the first stop for investors requiring an investment license. SAGIA requires all investors to have a local representative throughout the establishment process.

Starting a Foreign Business

Minimum capital requirements Minimum capital requirements are usually a larger obstacle for small and medium enterprises than they are for large foreign investors.

Table 4.2: Examples of minimum capital requirements in IAB countries

A foreign company will, in most cases, be investing more than the

Country

Minimum capital requirements

minimum capital requirement even though some smaller multinational

Belarus

While there is no minimum capital requirement for domestic companies, if a company is established in the form of a foreign LLC the amount is $20,000. Charter capital must be paid in full prior to establishment of domestic companies while the Investment Code states that only 50% of the charter capital of foreign companies needs to be paid during the first year of establishment and in full within 2 years.

Ethiopia

The minimum capital requirement for a foreign investor is $100,000 unless it invests with a domestic partner, in which case the minimum capital requirement is $60,000.

Ghana

The Ghana Investment Promotion Centre Act (GIPC) sets out specific amounts that must be invested by foreigners. In a wholly foreign-owned enterprise, the minimum capital requirement is $50,000. It drops to $10,000 for joint ventures with a Ghanaian partner. In the case of trading enterprises, the minimum capital requirement is $300,000.

Haiti

Haiti is the only IAB country where the minimum capital requirements are more favorable to foreign companies. If a wholly foreign-owned company is being registered, there is no specific minimum capital requirement. In the case of joint ventures with one or more Haitian shareholders, the minimum capital is HTG 100,000 (~$2,500) for industrial companies or HTG 25,000 (~$630) for commercial companies.

Nigeria

At least 25% of the authorized share capital must be fully issued prior to the company’s establishment. The minimum share capital for a domestic company is N10,000 (~$65), while the minimum for a foreign company is N10,000,000 (~$65,000).

Philippines

Domestic companies are required to have not less than PHP 5,000 (~$112) paid-in capital. However, a company with more than 40% foreign equity must have a minimum paid-in capital of PHP 9,000,000 (~$200,000) if it produces goods for sale or engages in business in the Philippines. If it exports at least 60% of its output, the minimum paid-in capital required is PHP 5,000.

Saudi Arabia

Although the amended Companies Law abolished capital requirements, in practice foreign companies must comply with the following minimum capital requirements in order to obtain a business license: SR 100,000 (~$27,000) for individual establishments

companies might find even the lower thresholds to be an impediment. However, high minimum capital requirements may still discourage companies from investing and do not offer much protection against unscrupulous entrepreneurs. Fifty out of the 87 countries surveyed by IAB (57%) have some form of minimum capital requirement for LLCs. In 10 IAB countries, the minimum capital requirement is different for domestic and foreign companies. In some cases, the amount required of foreign companies is higher than that required of domestic businesses. In other cases, foreign companies are subject to minimum capital requirements while domestic companies are not. Table 4.2 shows some examples of IAB countries in which the minimum capital requirement differs for domestic and foreign companies.

Foreign currency bank accounts requirements Foreign investors often need foreign currency in order to trade and conduct business with overseas partners. In the following 4 IAB countries, there is an outright prohibition on holding a bank account in foreign currency: Brazil, Colombia, Morocco, and República Bolivariana de Venezuela. In other countries, foreign investors can hold such an account only after obtaining approval from public authorities. This approval can be difficult to obtain. In Burkina Faso, Côte d’Ivoire, Mali, and Senegal, the Regulation of the Monetary Union of West Africa (UEMOA) requires a foreign company to receive authorization from the Minister of Finance and ultimately the Central Bank of the West African States (BCEAO) in order to hold a foreign currency bank account. The situation is similar in Cameroon, where resident companies are not allowed to hold a bank account in a foreign currency unless they receive approval from the Bank of Central African States (BEAC). Receiving an approval from these central banks can take weeks, and, on occasion, several months. In the other IAB countries where an approval is requested, this process is easier and takes a matter of

SR 500,000 (~$135,000) for companies SR 1,000,000 (~$270,000) for industrial projects SR 25,000,000 (~$6,750,000) for agricultural

days or weeks. These countries are Pakistan (27 days), Papua New Guinea (11 days), Solomon Islands (7 days), Sri Lanka (5 days), China

projects.

(4 days), and Azerbaijan (3 days). Zambia

Conclusions Establishment procedures alone are not a strong determinant of FDI inflows. However, burdensome processes are an irritant and at times a deal breaker, particularly for small and medium multinational corporations. As the first interactions the foreign investor has with a country’s administration, start-up procedures can quickly seal a country’s reputation as being investor-friendly or not. Reforms in startup procedures have been shown to lead to improved governance,

Investing Across Borders 2010

A foreign company establishing a subsidiary in Zambia must be issued a certificate of compliance for the following minimum capital requirements: K5,000,000 (~$1,000) for private companies

K50,000,000 (~$10,000) for public companies K250,000,000 (~$50,000) for foreign exchange offices

K500,000,000 (~$100,000) for financial institutions or insurance companies

K1,000,000,000 (~$200,000) for banks. Source: Investing Across Borders database.

reduced corruption, and send the signal that

business start-up process, which enables

indication of the overall regulatory environment

the government is open for business, including

investors to register their businesses online.

that they can expect in the host country. This

FDI.10

The availability of fast-track alternatives,

report has presented examples of a number

even if they entail a higher processing fee,

of countries at various levels of income and

is usually valuable to foreign investors. Last

institutional development that have well-

but not least, one other hurdle that makes

organized systems for business start-up.

Motivated by the growing competitiveness of international commerce, countries have good reasons to modernize and streamline their regulatory frameworks. Countries that have done well in the Doing Business starting a business indicator (Canada, Singapore, and Georgia) also do well in the Starting a Foreign Business indicators of the Investing Across Borders project.

the establishment process burdensome to foreign companies is the requirement to go through a local third party (lawyer, notary, public entity). Countries can make this requirement optional.

Simplification of the investment approval: The foreign investment approval can be a

The Starting a Foreign Business data for the

burdensome requirement for foreign inves-

87 countries surveyed point to the following

tors. They must in some instances prove

good practices:

minimum projected annual sales or dem-

Equal treatment of foreign and domestic

onstrate net economic benefits in order to

Investing Across Borders 2010 is a new initiative that we hope to continue to improve in the future. IAB will also consider expanding and deepening the scope of its indicators. We welcome your comments and feedback.

Endnotes 1 Doing Business, starting a business indicators (http://www.doingbusiness.org/ ExploreTopics/StartingBusiness/).

investors: The start-up process should be

be allowed to enter the market. In other

governed by the same regime and rules

cases, the requirements are unclear and

for all companies irrespective of their own-

give public authorities discretion to ap-

ership. Any differences in treatment should

prove or decline an investment approval

be due to the companies’ size, legal form,

request. To remedy this, countries can

3 Golub (2006).

or commercial activity, rather than the

simplify their investment approval require-

4 Djankov (2002).

nationality of its shareholders.

ment, making it a simple notification or

5 UNCTAD (2006b).

abolishing it altogether, unless the foreign

6 International Finance Corporation (1997).

investment is made in a strategic sector

7 Doing Business (2010).

that might have an impact on national or

8 Doing Business, starting a business indicators (http://www.doingbusiness.org/ ExploreTopics/StartingBusiness/).

Simplification of the establishment process: While it takes only about 4 to 6 days to establish a foreign-owned subsidiary in certain countries, this process can

economic security.

take more than several months in others.

The Starting a Foreign Business indicators

Countries can improve the establishment

measure effective regulation, leading to

process by consolidating procedures and

predictable and transparent administrative

abolishing the unnecessary or obsolete

processes

ones (for example, company seal require-

increasingly competitive world, an investor-

ment, investment approval for small proj-

friendly regime for FDI entry is often viewed by

ects). Also, countries can computerize the

foreign companies as an important signal and

for

foreign

investors.

2 World Bank Enterprise Surveys (http://www. enterprisesurveys.org).

9 Full text of the Hague “Convention Abolishing the Requirement of Legalisation for Foreign Public Documents,” of October 5, 1961, as well as additional details, can be found at http://www. hcch.net/index_en.php?act=conventions. pdf&cid=41. 10 Djankov (2002).

Starting a Foreign Business

Accessing Industrial Land up to 100 years if it so desires. The company is optimistic about its Interesting facts

business prospects and is looking forward to investing in Turkey.

In 1 in 4 of the countries surveyed by Investing Across Borders

These examples show that the ease of accessing industrial land can

All the countries surveyed allow foreign-owned companies to

can significantly impede foreign direct investment (FDI).1 The World

More than half the countries surveyed do not allow foreign

to land a major or severe obstacle to operating and expanding their

It takes as little as10 days to lease private land in Armenia—

Accessing land can impede foreign investment and doing business

(IAB), foreign companies cannot own private land. lease land.

companies to use land leases as collateral. and as many as149 days in Nicaragua.

Across the 87 IAB countries the average time it takes to lease land from the government is more than twice that required to lease land from a private holder.

Nearly two-thirds of countries require an additional approval to authorize the lease of government-held land to foreign companies.

In only one-third of countries with both a land registry and

cadastre are the two public agencies linked to share data, facilitating information access.

Less than half the countries do not provide accessible public

documentation on previous environmental impact assessments conducted on industrial lands.

Source: Investing Across Borders 2010.

affect a company’s decision to invest—and that difficult access to land Bank’s Enterprise Surveys have found that many firms consider access businesses around the world (figure 5.1).

more generally for many reasons, including:

Mistrust and discrimination. Foreign investors seeking to acquire land—particularly in Eastern Europe, Sub-Saharan Africa, and Southeast Asia—often face sensitive land issues rooted in historical, indigenous, and colonial traditions.2 Mistrust of private ownership, particularly foreign ownership, still exists in many economies, leading to policies that discriminate against foreign companies or individuals.3 Such policies may include restrictions on ownership, types of land that can be acquired, and approvals for foreign investors.4

Weak legal framework for land. Once a company obtains rights to an investment site, weak land use rights can impede its ability to operate and plan for the long term. Limits on land use rights can include short lease terms, obstacles to renewing and transferring

Why land access matters to foreign investors

land rights, and restrictions on the ability to mortgage land or use it as collateral.5

Burdensome acquisition procedures. It may be difficult to obtain

A South African manufacturing company is interested in expanding its market presence in East Africa and is short-listing potential investment destinations in the region. It hopes to establish a locally incorporated food processing plant that will export packaged goods back to South Africa and other markets. While seeking to identify a land plot for the plant, the company learns that the only way to access industrial land in Addis Ababa, Ethiopia’s capital, is by leasing public land, since private ownership of land is prohibited. Land is leased through a government auction, and the process can take 6 months. Acquiring

Percentage of foreign-owned manufacturing firms identifying access to land as a major or severe obstacle to operating and expanding business Sub-Saharan Africa (38)

20.4%

information on land is time-consuming and requires visits to several

Eastern Europe & Central Asia (28)

19.3%

agencies. In some cases it is unclear where to find needed information.

East Asia & Pacific (11)

19.2%

These circumstances may lead the South African company to look for

Middle East & North Africa (4)

18.2%

Global average

18.0%

opportunities elsewhere. In contrast, a German manufacturing company is looking to open a

South Asia (4)

locally incorporated subsidiary in Istanbul, Turkey’s commercial center.

High-income OECD (14)

The subsidiary plans to manufacture light electronics and distribute them to its retailers in Europe and Asia. Thanks to the easily accessible information on land plots at Istanbul’s Directorate of Land Registry and Cadastre, the company has already identified a suitable location for the factory. Leasing private land in Istanbul is efficient and streamlined, taking just over 2 weeks. The lease can be valid for 50 years, and helpful regulations should enable the company to renew the lease for

Figure 5.1: In many regions access to land is a significant obstacle to investment

Investing Across Borders 2010

Latin America & Caribbean (20)

17.4% 14.1% 11.2%

Note: The sample includes all economies surveyed in the Enterprise Surveys Database from two surveys: one from 2002 to 2005 and one from 2006 to the present. The numbers in parentheses are the number of economies in each region that had 30 or more majority foreign-owned firms respond to the survey. Many economies are included multiple times because they were surveyed in multiple years. For example, Belarus is included 3 times because it was surveyed in 2002, 2005, and 2008. Source: World Bank Group Enterprise Surveys Database.

clear land titles,6 and acquiring industrial

all stakeholders—including investors, host

provides an extensive list of the indicators’

land is often inefficient, nontransparent,

countries, and their citizens. A solid legal

substantive and methodological limitations,

and a source of corruption.7

framework gives investors confidence in the

including guidance for how to interpret and

security of their land, investments, and rights.

use the data.

Lack of information. Foreign investors often face major challenges in finding

That framework also allows governments to

suitable investment locations. Challenges

ensure that investors respect the law and

can include insufficient information about

that their activities in host countries enhance

encumbrances, valuation, geographic

socioeconomic development.

characteristics, utility connections, and environmental and social risks.8

Making land a tool for economic development requires more than providing easy access

Improving access to land and ensuring its

to industrial land for companies. It also

security provides significant benefits for

requires ensuring that access is secure and

foreign investors, governments, and other

complemented by inputs such as natural

stakeholders. Effective, efficient, secure land

resources, working and human capital, and

administration is one of the drivers of foreign

institutions for credit, finance, insurance,

investment. Better access to land can also

infrastructure, land registration, and contract

facilitate investment—foreign and domestic—

enforcement, including land’s ability to be

and may increase prosperity. Secure land rights

used as collateral.18 In addition, it requires

can unleash a country’s economic potential,9

balancing the needs of investors, governments,

with benefits for domestic and foreign investors

and citizens, with proper safeguards to protect

alike. In addition, improving land security can

the environment and the people living on the

encourage private investment,10 diversify labor

land.19

force allocation,11 increase the market value of land,12 boost productivity,13 raise income and consumption,14 and reduce poverty.15

The Accessing Industrial Land indicators quantify 3 aspects of land administration regimes important for foreign companies seeking to acquire land for their industrial investment projects. The indicators focus both on the legal framework and its implementation. In doing so they provide detailed information for countries looking to reform their land administration

frameworks

and

policies.

The indicators are structured to reward predictable, transparent, and well-regulated land administration systems, which do not overburden investors and provide sufficient protections to land holders. The indicators also provide a useful reference of examples

The Accessing Industrial Land indicators do

of good practices.

not encourage governments to promote land transactions at the cost of environmental

But better access to land for investment can

and social protections. Despite efforts to

also pose significant socioeconomic and

balance the benefits and costs of regulation

political risks. There is justified concern that

in the indicators, major limitations remain. The

improving foreign access to land may hurt

indicators do not specifically highlight issues

environmental and social protections in the

related to environmental and social protections,

host economy. Critics often claim that land

though the IAB survey did examine these in

reforms are not pro-poor and ignore customary

the context of leasing land. In most countries

ownership systems that have been in place

an environmental or social impact assessment

for centuries.16 They also argue that improving

(or both) is not conducted when a foreign

access to land can increase speculation and

company leases or buys land. Instead, such

encourage governments to allow affluent

assessments occur when a company intends

foreigners to buy or lease prime real estate

to construct on the land or begins operations

at prices well below its market value, leaving

in an environmentally sensitive sector.

communities without land to live on.17

Introducing the Accessing Industrial Land indicators

Structure of the Accessing Industrial Land indicators The Accessing Industrial Land indicators comprise the following 3 components: 1. Strength of land rights: These indicators compare economies on the types of land rights available and the strength of legal rights they offer to investors—for instance, land-holding options that are available to foreign companies, whether or not there is different treatment for foreign and domestic companies and whether the land can be sub-leased, subdivided, mortgaged, transferred or

When interpreting and using these indicators,

used as collateral.

Improving access to land for private investment

it should be kept in mind that they focus

requires striking a balance between efficient

primarily on laws and regulations governing

information: These indicators bench-

and effective regulation that is both pro-

foreign companies’ access to industrial land,

mark economies regarding the access

business and supports economic development.

and less on legal protections for countries’

to and availability of key pieces of land

The Accessing Industrial Land indicators do

citizens

information.

not specifically examine the issue of more

indicator sets, the IAB indicators should not

versus less regulation. Instead they measure

be considered in isolation, but in conjunction

good regulation and efficient processes.

with other indicators and reports—such as

Transparent, predictable, and effective laws and regulations with proper safeguards are

critical

ensuring

that

foreign

investment results in a win-win situation for

and

environments.

many

the Land Governance Assessment Framework (LGAF)20—that reflect a country’s other needs

2. Access to and availability of land

3. Ease of leasing land: These indicators measure the time it takes to lease land from both a private holder and the government.

and socioeconomic development concerns.

More details on how the indicators are

The methodology chapter of this report

constructed and what they include are

Accessing Industrial Land

Table 5.1: Accessing Industrial Land indicators Thematic area Land rights

Strength of lease rights index (0-100)

Ability of foreign-owned companies to lease land

Key laws evaluated by the Accessing Industrial Land survey

Whether leasing procedures are the same for

Box 5.1 presents some of the principal laws evaluated by the

Whether there is a statutory maximum duration of

land-specific laws and regulations, while others regulate land

without entering into partnership with a domestic company or individual

matters through relevant stipulations of civil and commercial

Ability of foreign-owned companies to renew,

land-related laws and regulations in all of the sources listed

transfer, sublease, subdivide, and/or mortgage leased land, or use it as collateral

Strength of ownership rights index (0-100)

Ability of foreign-owned companies to purchase

in the box.

Box 5.1: Key laws measured by the Accessing Industrial Land indicators

foreign and domestic companies

Land or property laws, which may take the follow-

Whether purchase procedures are the same for of land plot a foreign-owned company may buy

Ability of foreign-owned companies to renew,

transfer, sublease, subdivide, use as collateral and/or mortgage purchased land

Whether the land registry and/or cadastre have a publicly accessible inventory of private and/ or public lands

Whether the land registry and/or cadastre have an online inventory of private and/or public lands

Whether the land registry and/or cadastre share data about land

Whether there is a publicly accessible land

information system (LIS) and/or geographic information system (GIS).

Availability of land information index (0-100)

codes, or as part of the Constitution. Many economies have

land without entering into partnership with a domestic company

Whether there is a statutory maximum on the size

Access to land information index (0-100)

Accessing Industrial Land indicators. Some economies have

Whether there is a statutory maximum on the size

of land plot a foreign-owned company may lease

ing forms depending on the country: Land title act, land title registration act, land registry act, state lands act, government lands act, municipal property act, property registration act, mortgage act, conveyancing act, deeds registries act, cadastre and property register act, agricultural land ownership and use act, lands commission act, foreigners land acquisition act, state property and contracts act, land tenure ordinance

Investment codes, laws, or acts Civil codes and civil procedure codes or rules Commercial laws or codes Constitutions

Availability of the following 18 pieces of information about land plots:

-- previous land contracts -- plot size -- land value -- street address -- mailing address -- immovable property on the land -- spatial information about the land -- geotechnical description -- documentation on environmental impact as----------

each of the components.

Measures

lease contracts

Ease of leasing land

online provides a detailed list of specific issues evaluated in

Indicator

foreign and domestic companies

Land information

presented in table 5.1. The methodology chapter available

sessment zone classification tax classification information on surroundings carrying capacity of the land local population density utility connections encumbrances existing land claims legal jurisdiction of the land

Time to lease private land

Total number of days to lease land from a private

Time to lease public land

Total number of days to lease land from the

owner

Investing Across Borders 2010

government

Results of the Accessing Industrial Land indicators Context for understanding Accessing Industrial Land indicators Understanding the context of how a wholly foreign-owned, locally incorporated subsidiary (for the rest of this chapter this legal form will referred to as a ‘foreign company’) accesses industrial land is important for comparing the characteristics of countries’ land administration regimes. These contextual aspects are not included in the construction of the indicators, rather they are presented in this chapter to provide the appropriate setting for the subsequent presentation and discussion for the Accessing Industrial Land indicator results.

How investors acquire land There is a wide degree of variation around the world in the way foreign companies prefer to hold land (figure 5.2).

Typically, this preference depends mostly on

Figure 5.2: Most common type of land acquisition varies by region

the availability of local legal options. Given that investors commonly prefer the maximum

Most common form of land acquisition, share of economies per region

security over land, in countries which allow

■ Lease public land ■ Buy private land ■ Lease private land

full private ownership of land investors tend to

100%

prefer to lease or land buy private land rights (as Buy public 57%

60%

52%

75%

Lease public land

whether to lease or buy typically depends on Buythe private land the nature of company’s commercial activity

75%

and the size investment (both in terms of Leaseofprivate land

50%

capital invested and amount of land needed).

58%

56%

In countries which do not allow private

25%

opposed to public land rights). The choice of

ownership of land because all land is held by the state, foreign companies will typically East Asia & Pacific (10)

Eastern High-income Latin America Middle East & South Asia Europe & OECD & Caribbean North Africa (5) Central Asia (12) (14) (5) (20)

Sub-Saharan Africa (21)

lease public land from the government. Foreign companies prefer, on average, to

Note: Values are provided only for that type of landholding that is commonly preferred by most foreign companies. These data are not part of the Strength of land rights index analyzed in the previous section, or of any other indicator that scores economies’ performances. They offer only contextual information. Source: Investing Across Borders database.

buy private land for the realization of their investment projects in the following regions of the world: Eastern Europe and Central Asia, Latin America and the Caribbean,

Table 5.2: Common means of land acquisition by foreign firms in South Asia

and the Middle East and North Africa. In East Asia and the Pacific and high-income OECD economies foreign companies most

Type of land rights available Country

Lease private land

Buy private land

Lease public land

Buy public land

Afghanistan

Most Common

Not Possible

Common

Not Possible

Bangladesh

Common

Most Common

Common

Not Possible

India

Common

Most Common

Not Common

Pakistan

Common

Most Common

Not Common

Sri Lanka

Not Common

Common

Most Common

Not Common

Source: Investing Across Borders database.

commonly lease rather than buy private land. Finally, in South Asia and Sub-Saharan Africa companies are more likely to lease land from the government, as private ownership is prohibited in many economies in these regions. South Asia illustrates an example of a considerable variation of practices among countries even within a region (table 5.2). In India, Pakistan, and Sri Lanka it is most

Figure 5.3: Regions vary on whether or not foreign companies can own land

from the government, although it is highly

Share of countries which allow public and private land to be purchased, by region ■ Private land

unusual to buy land from the government.

■ Public land 100% 100%

High-income OECD (12)

100%

Latin America & Caribbean (14)

86% 95%

Eastern Europe & Central Asia (20)

85% 80%

South Asia (5)

60%

Middle East & North Africa (5)

60%

Source: Investing Across Borders database.

foreign companies to buy land under certain contract arrangements. Eighteen of the 87

legal and political history of a country. In other countries, despite allowing private ownership of land, the overwhelming majority of land remains state owned.21 Most economies in

33% 33% 0

In some economies Private landit may not be possible for

private ownership of land, often due to the

52% 48%

East Asia & Pacific (10)

RestrictionsPublic on land ownership

countries surveyed do not allow any form of

80%

Sub-Saharan Africa (21)

common for foreign companies to lease land

100

East Asia and the Pacific and Sub-Saharan Africa do not allow foreign companies to own private or public land (figure 5.3).

Accessing Industrial Land

Mozambique, Nigeria, Sierra Leone, Sudan,

Differences in legal treatment between domestic and foreign companies and individuals

Tanzania, and Uganda—do not allow any form

In the majority of economies surveyed, legal

of freehold (full ownership)22 land title (table

provisions for access to land apply to all

5.3). According to the Federal Constitution of

locally incorporated companies irrespective

Ethiopia, for example, the right to own land

of whether they are domestically- or foreign-

is exclusively vested in the state and peoples

owned. In these economies the Accessing

of Ethiopia.23 Land rights in Sub-Saharan

Industrial Land indicators are not necessarily

Africa have evolved in response to changing

FDI-specific since they are also applicable

political, social, and economic conditions,

to domestic companies. Nevertheless, many

and to this day many indigenous communal- or

countries around the world still have specific

clan-based land systems prevail.24 Thus, many

legal restrictions on rights to occupy and use

Sub-Saharan African economies only offer

land by foreign companies and individuals.

long-term lease rights.25

For example, Bosnia and Herzegovina

Nine of the 21 Sub-Saharan economies surveyed—Ethiopia,

Ghana,

Liberia,

and the Philippines do not allow foreign companies to lease public land. There may also be restrictions on the type of land foreign entities can acquire. In Angola, Armenia, Azerbaijan, Bangladesh, Belarus, Bosnia Table 5.3: Many Sub-Saharan African economies do not allow freehold land title of any form Can a foreign-owned company…

Saudi Arabia, Romania, and Thailand foreign individuals can not own residential land even though land ownership is allowed for nationals. In 8 of the 87 countries surveyed, foreign individuals cannot own commercial

…purchase

Country

government/ public land?

…purchase private land?

land and in 16 countries foreign companies

Angola

Yes

fact that nationals can.26 This phenomenon

Burkina Faso

Yes

is not restricted to developing and transition

Cameroon

Yes

economies.

Côte d’Ivoire

Yes

economies also have restrictions against

Ethiopia

Ghana

Kenya

Yes

Liberia

Madagascar

Yes

Mali

Yes

Mauritius

Yes

Mozambique

Nigeria

Rwanda

Yes

Senegal

Yes

Sierra Leone

South Africa

Yes

Sudan

Tanzania

Uganda

Zambia

Yes

Source: Investing Across Borders database.

and Herzegovina, Bulgaria, Madagascar,

Investing Across Borders 2010

cannot own agricultural land despite the

Many

high-income

OECD

foreigners. Denmark, Finland, Greece, and

of specific areas of land or impose resident requirements on foreigners wishing to acquire land.27 Another form of discrimination concerns legal treatment of wholly foreign-owned, locally incorporated companies seeking to acquire and use land. Seventy six percent of the countries surveyed would consider this type of a company as a domestic company and give it equal treatment before the law in the land leasing processes. However 21 of the 87 countries would still consider the company a foreign company. These countries have specific restrictions on foreign companies, including

different

leasing

procedures,

additional costs, required partnerships with nationals to acquire land, or additional approvals from the government for selling land (table 5.4).

Strength of land rights indicators The Strength of land rights indicators consist of 2 quantitative indicators evaluating the legal framework governing land rights for foreign companies. The first is the Strength of lease rights which includes all 87 countries surveyed and measures the strength of rights a land lease contract offers foreign companies. The second is the Strength of ownership rights which includes only those 68 countries surveyed which allow private ownership of land.

Ireland for instance, restrict foreign ownership

Table 5.4: Comparison between legal treatments of foreign companies seeking to acquire land For the purpose of leasing land a wholly foreign owned, locally incorporated company is considered a domestic or foreign company (share of economies)? Question

Considered domestic

Considered foreign

76%

24%

Different procedures for leasing private land?

10%

Different procedures for leasing public land?

21%

Additional cost for leasing private land?

15%

Number of economies surveyed

Additional cost for leasing public land? Require partnership with a national to own land? Require permission from government to sell purchased land? Source: Investing Across Borders database.

11%

18%

56%

18%

Strength of lease rights indexâ&#x20AC;&#x201D;overall results

leases, the lower index scores illustrate the

of land-holding options, do not treat foreign

fact that many countries do not allow foreign

companies differently from domestic ones,

High-income

companies to subdivide leased land or use

and allow foreign companies to freely use

land as collateral.

the land for various business transactions.

OECD

economies

provide

foreign companies with a strong set of lease rights and options regarding land use (figure

Eight of the 87countries score the maximum of

5.4). In Latin America and the Caribbean

100 out of 100 because they offer the most

land leases are less common and using

options to foreign companies on how they can

leased land for collateral and other purposes

use leased land (figure 5.5). Five of the top

is thus not typical. Rather, most economies in

10 performers come from high-income OECD

the region provide stronger ownership rights.

economiesâ&#x20AC;&#x201D;Canada, Spain, the United

In contrast, in the Sub-Saharan economies

Kingdom, the United States, and France.

where land is typically held in long-term

All these economies provide a complete set

Many of the economies that offer the fewest options for land acquisition and have the weakest lease rights are from Sub-Saharan Africa (4 economies). Many economies in the low performing regions do not allow foreign companies to use leased land as collateral.

Limits on use of lease contracts All 87 economies surveyed allow foreign companies to lease land. However, there are

Figure 5.4: Strongest lease rights are available in high-income OECD countries

distinctions across economies on the legal limits for maximum lease duration, and on

Strength of lease rights index (100 = strongest rights), by region

how leased land can be used for business activities. Many economies, especially in Sub-

High-income OECD (12)

Saharan Africa and East Asia and the Pacific

South Asia (5)

have legal limits on the maximum duration of

East Asia & Pacific (10)

a lease contract (figure 5.6). If the terms are too short foreign companies may be limited in

Eastern Europe & Central Asia (20) Middle East & North Africa (5)

Latin America & Caribbean (14)

Sub-Saharan Africa (21)

77 0

their capacity to plan long-term. For example in Thailand there is maximum lease duration of 30 years for any foreign company seeking to lease land.

100

Note: Please refer to the methodology section online for identification of all components of the Strength of land rights index. Source: Investing Across Borders database.

The indicators also reveal that more than half of the 87 economies surveyed do not allow foreign companies to use land leases as collateral to obtain credit for purchase of machinery or production equipment. This

Figure 5.5: Strength of lease rights vary greatly across countries

is mostly the case in Latin America and the Caribbean where 13 of the 14 economies

Strongest and weakest country performers on strength of lease rights index (100=strongest rights) 100 100 100 100 100 100 100 100

Bangladesh Canada Costa Rica Singapore Spain United Kingdom United States France China Cambodia Ethiopia Yemen, Rep. Montenegro Philippines Bolivia Saudi Arabia Ecuador Liberia Mozambique Sierra Leone

surveyed do not allow leased land to be

96 93 75 69 69 69 65 64 62 58 53

used as collateral, although all of them allow purchased land to be used for collateral. In Colombia a lease is considered a contractual right (that is, a right to use the land) and not a property right (that is, a right to dispose of the land). Consequently, since the lessee does not have the right to dispose of the land, it cannot be used as collateral. Allowing lease contracts to be used as collateral is not common in the Middle East and North Africa. Of the 5 economies surveyed, Egypt and Saudi Arabia do not allow leases to be used as collateral (table 5.5). In Saudi Arabia even purchased land cannot be used as collateral by foreign companies.

Source: Investing Across Borders database.

Accessing Industrial Land

Figure 5.6: Nearly all economies in Sub-Saharan Africa have legal limits on the duration of lease contracts Percentage of economies that have legal limits on the maximum duration of a lease contract Sub-Saharan Africa (21)

90%

East Asia & Pacific (10)

Latin America & Caribbean (14)

50%

Eastern Europe & Central Asia (20)

40%

Middle East & North Africa (5)

50%

East Asia & Pacific (10)

50% 40% 24%

South Asia (5)

0% 0

High-income OECD (12)

Sub-Saharan Africa (21)

South Asia (5)

75%

Middle East & North Africa (5)

20%

High-income OECD (12)

93%

Eastern Europe & Central Asia (20)

70%

Latin America & Caribbean (14)

Percentage of economies which do not allow foreign companies to use lease contracts as collateral

100

0% 0

100

Note: None of the 5 economies surveyed in South Asia had either a limit on the maximum duration of a lease contract or a restriction on whether a lease could be used for collateral, thus the region is reported as showing 0%. Source: Investing Across Borders database.

Table 5.5: Ability to use land contracts for collateral in the Middle East and North Africa

rights index include whether or not foreign companies can sublease or subdivide their leased land, and whether or not leased land

Can foreign companies use… Country

Other issues covered in the Strength of lease

…leased land for collateral?

…purchased land for collateral?

Egypt, Arab Rep.

Yes

Morocco

Yes

N/A

Saudi Arabia

Tunisia

Yes

Yemen, Rep.

Yes

Note: Morocco does not allow foreign companies to buy land and thus the question of whether or not purchased land can be used as collateral does not apply. Source: Investing Across Borders database.

can be mortgaged. Eighty percent of countries surveyed allow leased land to be subleased to another company, but only 38% allow leased land to be mortgaged (figure 5.7).

Strength of ownership rights index— overall results Only 68 of the 87 economies surveyed allow private ownership of land, and it is only these that are measured by the Strength of ownership rights index. The remaining 19 economies

Figure 5.7: Many economies have limitations on long term lease contracts for foreign companies

which do not allow private ownership are not evaluated. The global average for the Strength of ownership rights index is 92, which is rather high. It indicates that most

Share of countries which allow foreign-owned companies to sublease leased land

Share of countries which allow foreign-owned companies to mortgage leased land

No 20%

No 62%

economies provide foreign companies with a strong set of land ownership rights and options regarding land use. The region with the most restrictions on the use of ownership contracts by foreign investors is the Middle East and North Africa, where countries like

Yes 80%

Yes 38%

Saudi Arabia have restrictions on the size of land which can be purchased, and whether the purchased land can be subdivided and used as collateral by foreign companies (figure 5.8).

Source: Investing Across Borders database.

Investing Across Borders 2010

Source: Investing Across Borders, 2010

Box 5.2: Stronger lease rights security is associated with greater prosperity GNI per capita, 2009 Atlas Method

Figure 5.8: Most economies in the world offer strong ownership rights Strength of ownership rights index (100 = strongest rights), by region

$20,000

High-income OECD (12)

$15,000

$10,000

100

Latin America & Caribbean (14)

Eastern Europe & Central Asia (20)

South Asia (5) East Asia & Pacific (10)

$5,000

Weak rights

Strong rights

High-income OECD economies tend to offer investors the

Middle East & North Africa (5)

Initial findings suggest that the strength of lease rights index is highly correlated with higher levels of prosperity (income per capita) for the 87 IAB economies.

Sub-Saharan Africa (21) 69 0

100

Note: Please refer to the methodology section of this report and IAB’s Web site for identification of all components of the Strength of land rights index. Source: Investing Across Borders database.

widest range of options for accessing industrial land and the most freedom over the use of the land once they have acquired it. In contrast, low income economies, often due to the legacy of their past, tend to significantly limit the legal choices for securing land.

The land information indicators evaluate economies around the world

However, the correlation does not imply the existence or the

administration systems—land registries, cadastres and land information

direction of a causal relationship. Stronger land rights may be the result of economic development and increased prosperity. Conversely, improving the strength of land rights may create a platform for development and greater prosperity. Land rights may also be important in different ways depending on a country’s stage of economic development.

Note: The relationship is significant at the 1% level. The Strength of lease rights index has been broken into 5 quintiles expressed as groups of economies below the 20th, 40th, 60th, 80th, and 100th-percentile rank from weakest to strongest land rights. The economies ranked in the 80th percentile rank are an anomaly as they both have strong lease rights and less prosperity, these countries include; Angola, Côte d’Ivoire, Georgia, Kazakhstan, Morocco, Romania, Rwanda, and Ukraine. Source: Investing Across Borders database, World Bank Group World Development Indicators database.

on 2 important factors related to public provision of land information. First, the access to information about land through the countries’ land systems, among others. Second, the availability of key information at these public sources. The indicators do not measure a third and often even more critical factor—which is the quality of land information provided by public institutions. In many economies around the world the quality of information located within public land management institutions is very poor. As quality of land information is not the focus of the Accessing Industrial Land indicators, interested readers are encouraged to use other resources, including country-specific reports, to find this complementary information.

Access to land information index—overall results Some countries offer fast-track procedures for land purchase registration, including Argentina, Georgia, Kazakhstan, Moldova, Romania, and the Slovak Republic. In Kazakhstan the fast-track option for land registration was approved March 30, 2009; it remains to be seen if implementation is effective.

Access to and availability of land information indicators

There is significant variation across economies in the ease of access by private parties to public land information through public institutions and in the effectiveness of those systems. In general most economies surveyed perform relatively poorly on the Access to land information index, as public land management institutions are not well coordinated and in many countries not very effective. Notable exceptions are some high-income OECD and Eastern Europe and Central Asian economies (figure 5.9).

Once a foreign company has decided to invest in a country, it begins

Effective land administration systems and their integration

the process of looking for a suitable investment location. This typically

There are as many different types of institutions that house land-

involves identifying the relevant government authorities regulating land,

related information as there are different legal and cultural traditions

hiring a local real estate agency or consultancy to look for a plot

that govern land use around the world. Typically, a country has some

of land as well as beginning due diligence online and in person.

form of land or property registry28 or cadastre,29 regardless of whether

Accessing Industrial Land

Many economies in Eastern Europe and

Figure 5.9: Access to land information is difficult for investors

Central Asia provide modern and integrated land management systems (table 5.6). Most

Access to land information index (100 = most information), by region

economies in the region have both land registries and cadastres, and most either

High-income OECD (12)

house them in the same public authority or

Eastern Europe & Central Asia (20)

have them set up to share data. The only exceptions are Bosnia and Herzegovina

Middle East & North Africa (5)

and Poland, which do neither. Nearly three-

Latin America & Caribbean (14)

quarters of the economies in the region,

East Asia & Pacific (10)

however, do not use either a land information

Sub-Saharan Africa (21)

system (LIS) or geographic information system (GIS). Such systems can provide a better

South Asia (5) 0

means to acquire, manage, retrieve, analyze,

and display land records.31

Source: Investing Across Borders database.

it is of civil or common law origin. Nearly

Only 22% of the economies surveyed have

Availability of land information indexâ&#x20AC;&#x201D;overall results

three-quarters of economies surveyed by IAB

a functioning LIS and only 39% of the 41

have both a land or property registry and a

economies with both a land registry and

The overall results of the Availability of land

cadastre (figure 5.10).

cadastre

However, many economies around the world do not have functioning land information systems (LIS).30 More specifically, many economies do not have modern or coordinated land management systems. This can be a serious problem, contributing to land-related disputes. And in many economies, the largest backlogs in the courts are due to the large number of disputes arising from poor land information provided by the public landrelated institutions, which often do not contain information on all land, as not all land is properly registered.

have

information

technology

systems set up that allow the 2 institutions to share information (figure 5.11). An example of a poorly functioning system is found in Cambodia, where the registry and cadastre are neither located in the same agency nor set up to share data. On the other hand, Georgia has a modern and well-functioning land management system. The land registry and cadastre are both located in the National Agency of Public Registry within the Ministry of Justice and interested parties can go online to search an interactive LIS system to help narrow down possible investment locations.

information index for the top and bottom 10 IAB economies surveyed show that 4 of the top 10 economies that make the most information available are in Eastern Europe and Central Asia and 4 more are high-income OECD economies, including the overall top performer Ireland (figure 5.12). Economies that provide a lot of information about land, often through a land information system (LIS), typically make it accessible online. On the other hand key information about land plots is most difficult to come by in Sub-Saharan Africa, with 7 of the bottom 10 economies coming from that region. Many other economies also provide relatively

little

informationâ&#x20AC;&#x201D;the

Solomon

Islands, for example, lacks public information on such matters as land value, encumbrances,

Figure 5.10: Share of economies with land registry and cadastre

Figure 5.11: Large variations across economies on the effectiveness of landmanagement systems Share of economies with land information system (LIS)

Cadastre 4%

Neither 4%

No 77% Land/Property Registry 19%

Yes 23%

Both 73%

Source: Investing Across Borders database. Source: Investing Across Borders database.

Investing Across Borders 2010

Share of economies in which cadastre and land/property registry are linked to share data* No 61%

Yes 39%

* Only includes 41 economies which have cadastre and land registry.

Table 5.6: Characteristics of land administration systems in Eastern Europe and Central Asia

geotechnical descriptions of property, and zone and tax classifications. High-income OECD economies such as the

Characteristics of land administration system

Country

Land or property registry

Cadastre

Same public agency

Albania

Yes

Armenia

Yes

Azerbaijan

Yes

Belarus

Czech Republic provide easily accessible

Share data

Land Information System

Geographic Information System

Yes

N/A

connections, and encumbrances. In fact,

Yes

N/A

Czech Invest, the Czech Republicâ&#x20AC;&#x2122;s investment

Yes

N/A

Bosnia and Herzegovina

Yes

Bulgaria

Yes

Croatia

Yes

Georgia

Yes

N/A

Yes

Kazakhstan

Yes

functioning and credible land information

Kosovo

Yes

N/A

systems. In many economies on the continent,

Kyrgyz Republic

Yes

N/A

Yes

land information is often found in maps and

Macedonia, FYR

Yes

N/A

Yes

Moldova

Yes

Montenegro

Yes

N/A

Yes

Poland

Yes

in person. This is because much of the land

Romania

Yes

N/A

has yet to be surveyed and maps from the

Russian Federation

Yes

N/A

Yes

colonial era are out of date. The Directorate

Serbia

Yes

of Surveys in the Ministry of Lands, Country

Turkey

Yes

N/A

Ukraine

Yes

N/A

Note: N/A in the Share data column refers to those economies that either lack both a land registry and cadastre or locate them in the same public agency. Source: Investing Across Borders database.

Figure 5.12: Economies that provide the most and least amount of land-related information

Rwanda Burkina Faso Haiti Sudan Sierra Leone Liberia 5 Mali 3 Soloman Islands 3 Ethiopia Afghanistan 0

95 95 95 95 95 93 90 90 90

Source: Investing Across Borders database.

30 30

50 50

information, zone and tax classification, utility

promotion and business development agency, provides a modern database of available business properties. This makes it easy for a foreign company to go online and begin due diligence on possible investment locations even before arriving in the country. Many economies in Sub-Saharan Africa, on the other hand, are still struggling to piece together

systems dated from colonial times. In Sierra Leone, for example, it is nearly impossible to get credible land information from a public agency without visiting and surveying the land

Planning, and the Environment does not at present have the capacity to provide up-todate geotechnical descriptions of land parcels without starting from scratch and conducting new surveys.

Publicly available land information In many economies in East Asia and the Pacific the government retains tight control over land and land-related information, which

Availability of land information index (100 = most information), by country Ireland United States Armenia Bulgaria Kazakhstan Mauritius Vietnam Mexico Spain Czech Republic

information on plot size, land value, spatial

100

is not always publicly available to interested third parties (table 5.7). Cambodia, China, and the Solomon Islands make it particularly difficult to find land-related information such as documentation on land plot value, mailing addresses, environmental impact assessments, tax classifications, and utility connections.

Ease of leasing land indicators After a foreign company has located a suitable piece of land for its investment it will need to buy or lease the land from its holder. The process of leasing both private and public land differs from country to country. It

Accessing Industrial Land

Table 5.7: Key land-related information available to investors in East Asia and the Pacific Public availability of land information Type of information

Cambodia

China

Indonesia

Malaysia

Philippines

Singapore

Solomon Islands

Thailand

Vietnam

Land contract

Yes

Plot size

Yes

Land value

Yes

Street address

Yes

Mailing address

Yes

Immovable property

Yes

Spatial info

Yes

Geotechnical description

Yes

Documentation on Environmental Impact Assessment

Yes

Zone classification

Yes

Tax classification

Yes

Information on surroundings

Yes

Carrying capacity of the land

Yes

Local population density

Yes

Utility connections

Yes

Encumbrances

Yes

Existing land claims

Yes

Legal jurisdiction of the land

Yes

Source: Investing Across Borders database.

Box 5.3: Providing more land related information is associated with better quality of public services

Initial findings suggest that the

Government Effectiveness, 2008 (-2.5=weak, 2.5=strong)

availability of land information index is highly correlated with greater government effectiveness and better quality of public services for the 87 IAB economies.

0.8 0.6 0.4 0.2

Economies that have higher-quality

0.0 -0.2 -0.4 -0.6 -0.8

Least information

Most information

Note: The relationship is significant at the 1% level. The availability of land information index has been broken into 5 quintiles expressed as groups of economies below the 20th, 40th, 60th, 80th, and 100th-percentile rank from least to most information. The Government Effectiveness indicator measures the quality of public services, the capacity of the civil service and its independence from political pressures, and the quality of policy formulation. The economies ranked in the 80th percentile rank are an anomaly as they both have abundant land information but less government effectiveness; these countries include: Albania, Argentina, Azerbaijan, Ghana, India, Indonesia, Kenya, Malaysia, Republic of Yemen, Romania and South Africa. Source: Investing Across Borders database, World Bank Governance Indicators (2008).

Investing Across Borders 2010

public institutions tend to have more modern and coordinated landmanagement systems as a result. These systems tend to provide more information to interested parties.

However, the correlation does not

imply the existence or the direction of a causal relationship. It is equally likely that generating more landrelated information encourages the creation of more effective government institutions to manage that information.

involves different procedures and interactions with different authorities and takes varying amounts of time to complete, from a few days to several months, and, in some instances, almost a year.

Overall results The Accessing Industrial Land indicators measure the time required to lease land. The indicators exclude the process of buying land, because private land ownership is not allowed in many of the measured economies. The time required to lease land from both private holders and the government varies (figure 5.13). Foreign companies seeking to lease private land in the 5 economies surveyed in South Asia might need as long as 3 months to complete the process. On the other hand, it takes an average of 43 days to lease private land in the 20 economies surveyed in Eastern Europe and Central Asia. In Sub-Saharan Africa, the process takes significantly longer than in the high-income OECD economies.

Leasing land from a private holder In many IAB economies, the process of

Figure 5.13: Time needed to lease public and private land

leasing private land is efficient and takes less

■ # Days to lease land from private holder

than 2 weeks (figure 5.14). One example of a country where leasing private land

South Asia (5)

is short and transparent is Georgia, a top

Latin America & Caribbean (14)

Doing Business reformer. In its capital city— Tbilisi—the process takes 8 days, including the optional lease registration before a court. This procedure is not legally required, but is advisable if the company would like to use the lease in financial transactions. On the

the lengthy due diligence process, which can

151

133 59

Middle East & North Africa (5)

IAB global average

156 72

Eastern Europe & Central Asia (20)

process for leasing private land in Kabul,

205

East Asia & Pacific (10)

High-income OECD (12)

Afghanistan, takes 218 days, largely due to

Sub-Saharan Africa (21)

opposite end of the spectrum, the typical

■ # Days to lease land from government

123

88 61

140

Source: Investing Across Borders database.

take 3 months and includes formal visits to the Provincial Court, the Municipality, and the

Figure 5.14: Fastest and slowest economies for leasing land from a private holder

Afghan Geodesy and Cartography Office. The ease of leasing land indicators also reveal considerable variation within regions. Consider Latin America and the Caribbean (figure 5.15). In Chile, Costa Rica, and Peru the process is fast and takes roughly 3 weeks. In contrast, the process can take 3 months or more in Ecuador, Haiti, and Nicaragua. In Nicaragua, the lease agreement must be registered in the Public Registry, and it can take several months to receive certification of the registration.

Leasing land from the government The process to lease land from the government is significantly more burdensome than that to

Number of days Afghanistan Sierra Leone Nicaragua Mozambique Poland Solomon Islands Nigeria Vietnam Ecuador Ghana Philippines Greece Turkey Kyrgyz Republic Macedonia, FYR Sudan Korea, Rep. Armenia Rwanda Georgia

106 104

123 120

149 148 146 138

218 210

16 15 15 15 13 12 10 10 10 8

Source: Investing Across Borders database.

lease private land and takes, on average, twice as long across all 87 IAB economies. This is because in addition to the procedures required to lease land from a private holder, one must often obtain a government approval or go through formal process such as an auction, concession, or tender. The fastest IAB economies can lease government land to foreign companies in little more than 1-2 months, while the slowest take up to a year (figure 5.16). Of the economies surveyed, 65% require an additional approval to authorize the lease of government-held land to foreign companies (figure 5.17). This additional approval takes 2 months, on average, significantly extending

Figure 5.15: Time needed to lease land from private holders in Latin America and the Caribbean Number of days Nicaragua Ecuador Haiti Venezuela, RB Mexico Brazil Honduras Argentina Bolivia Colombia Guatemala Costa Rica Chile Peru

149 106 90 87 83 66 61 48 42 40 34 23 23 20

Source: Investing Across Borders database.

Accessing Industrial Land

the overall process of acquiring land. Leasing public land is fastest in Greece and involves a transparent and quick government auction through the Municipal Government Office in Athens. The entire process including the auction, due diligence, and signing the contract takes an average of 20 days. The steps involved in leasing public land are most burdensome in Kuala Lumpur, Malaysia. Here, foreign companies interested in leasing land from the government must first obtain approval from the District Land Office and the National Economic Planning Unit. Obtaining the 2 approvals can take anywhere from 1 to 2 years.

Conclusions This chapter has shown the wide range of practices across countries on the strength of land rights, the amount of available land information, and the ease of leasing land. Some countries allow foreign companies to buy industrial land. Others—mostly in East Asia and the Pacific and Sub-Saharan Africa—do not. Some countries, mainly high-income OECD members, provide easily accessible information about land plots that is shared across multiple government agencies. Finally, while some countries have quick and transparent procedures for leasing land, others—such as many in South Asia and Sub-Saharan Africa—make the process administratively burdensome and time-consuming.

Figure 5.16: Fastest and slowest economies for leasing land from the government

Improving access to land does not guarantee that a country will attract more FDI. However, all other things being equal, serious constraints to land access can be deal killers for interested investors. As a result,

Number of days

the strength of land rights, availability of information, and ease of

Malaysia Bulgaria South Africa Afghanistan Morocco India Sierra Leone Côte d'Ivoire Nicaragua Nigeria Mali United Kingdom Saudi Arabia Sudan Kosovo Armenia Korea, Rep. Yemen, Rep. Georgia Greece

355 351 304 301 296 295 277 276 267 254

leasing land can affect a country’s investment climate and overall competitiveness. The Accessing Industrial Land indicators point to the following good practices:

Efficient land acquisition procedures. A country should have clear rules for acquiring private and public land. Rules should remove unnecessary and burdensome steps while enabling authorities to conduct a proper process with fair protections for the greater pub-

63 62 60 60 59 57 53 52 50

lic good. Land administration institutions should provide businesses with a single point of access—and if the land acquisition process is lengthy, the option to use a fast-track procedure for a higher fee.

Clear laws which provide fair and equal treatment for foreign and domestic companies. Laws should provide sufficient security to investors—foreign and domestic—so that they feel comfortable

operating and expanding their businesses, and should not limit

Source: Investing Across Borders database.

Figure 5.17: Obtaining government approvals adds significant time to leasing procedures Share of economies which require an approval to lease public land

South Asia (5)

100%

Sub-Saharan Africa (21)

84%

Latin America & Caribbean (14)

Source: Investing Across Borders database.

Investing Across Borders 2010

43 98 12 55

High-income OECD (12)

42%

Eastern Europe & Central Asia (20)

45%

High-income OECD (12)

Sub-Saharan Africa (21)

Middle East & North Africa (5)

60%

Eastern Europe & Central Asia (20)

East Asia & Pacific (10)

67%

Middle East & North Africa (5)

South Asia (5)

Latin America & Caribbean (14)

71%

East Asia & Pacific (10)

Average number of days to obtain an approval to lease public land (for economies which require one)

100

their ability to develop, renew, transfer,

stakeholders, including domestic investors

mortgage, or sublease land. Laws and

and governments. The indicators may help

Endnotes

regulations should also take into account

governments determine how to prioritize

1 Muir and Shen (2005).

the interests of all stakeholders related to

land policy reforms that constrain their

2 Seidman (2003).

land use—including investors, govern-

competitiveness. Finally, the indicators provide

3 FIAS (2006).

ments, and communities. Attention must

a platform for dialogue among governments,

4 McAuslan (2010).

also be paid to environmental protection.

businesses, and civil society—dialogue that

5 FIAS (2005).

could trigger needed reforms.

6 Adams, Turner and White (2004).

Accessible land information. Land records

7 FIAS (2001).

should be up-to-date, centralized, integrated (linked across relevant government agencies), easily accessible (preferably with online access), and provide information useful to investors and the general public. Land administration is affected by a wide range of issues. The Accessing Industrial Land indicators focus on the administrative and regulatory framework for foreign companies seeking to access industrial land. Despite this limited focus, the indicators can play a crucial role in filling an information gap, benefiting

8 FIAS (2004). 9 de Soto (2000). 10 Besley (1995), di Schargrodsky (2007).

Tella,

Galiani,and

11 Field (2007). 12 Feder, Onchan, Chalamwong, and Hongladarom (1988), and Jimenez (1984). 13 Hornberger (2007), and Iyer and Do (2008). 14 Deininger, Jin, and Nagarajan (2008). 15 Deininger and Mpuga (2009). 16 Kingwell, Cousins, Cousins, Hornby, Royston, and Smit (2006). 17 Mitchell (2004). 18 de Janvry and Sadoulet (2005).

foreign investors and a wide range of other

19 Ibid.

Box 5.4: Efficient process of leasing land is associated with better perceptions about the quality of land administration Rating of access to land as problem for investment (1=no problem, 4=major obstacle) 4

Initial findings suggest that the ease

of leasing land is highly correlated with perceptions about the quality of land administration for the 87 IAB economies.

Economies that have more efficient

land leasing processes are also perceived as having better land administration.

However, the correlation does not im1

Slow process

Fast process

Note: The relationship is significant at the 1% level. The ease of leasing land time (an average of the public and private lease lengths) has been broken into 5 quintiles expressed as groups of economies below the 20th, 40th, 60th, 80th, and 100th-percentile rank from slowest to fastest process. Source: Investing Across Borders database.

ply the existence or the direction of a causal relationship. The reverse could also be true: in economies where the quality of land administration is well-perceived, quicker bureaucracy and faster leasing procedures are the result.

20 Burns and Deininger (2009). 21 Undeland (2010). 22 Freehold is full ownership of land in common law, providing the owner with the largest bundle of rights of ownership. 23 Article 40(8) of the Federal Constitution of Ethiopia. 24 Adams and Turner (2006). 25 Ibid. 26 These types of restrictions are not measured by the Accessing Industrial Land indicators which focus strictly on access to industrial land by foreign companies. 27 Ibid. 28 The definitive record of all registered properties, it comprises the registered details for each property. 29 A cadastre is a parcel-based land-information system containing a record of interests in land (rights, restrictions and responsibilities). It usually includes a geometric description of land parcels linked to other records describing the nature of the interests, and ownership or control of those interests, and often the value of the parcel. A cadastre is more common in civil law jurisdictions than in common law jurisdictions. 30 LIS is a parcel-based land database system, used for acquiring, processing, storing, and distributing land-related information. It can also be a tool for legal, administrative, and economic decision making and an aid for planning and development. 31 UNECE (2005).

Accessing Industrial Land

Arbitrating Commercial Disputes Assume that the foreign subsidiary is established in Prague, Czech Interesting Facts

All Investing Across Borders (IAB) countries recognize arbitration as a tool for resolving commercial disputes, and only 8 of the 87 countries do not have a specific arbitration law: Albania, Argentina, Bosnia and Herzegovina, Ethiopia, Liberia, Mali, Montenegro, and Poland.1

Republic. The company and its commercial partners can choose between ad hoc, institutional, and online arbitration services for both domestic and international disputes.3 A single coherent arbitration act provides default rules for arbitration proceedings and regulates enforcement of arbitral awards. The company can submit all types of commercial disputes for arbitration and can appoint any foreign

About half of IAB countries have laws that distinguish between

arbitrators with any professional qualifications selected by the

The Czech Republic and Mexico are among 17 IAB countries

allowed without restrictions. The company can appoint foreign counsel

In most countries in Latin America and the Caribbean, foreign

law guarantees the confidentiality of the proceedings. At the request

domestic and international arbitration.

where businesses can conduct arbitration proceedings online. lawyers without local bar membership are not permitted to represent parties in arbitration proceedings.

There are no functional arbitration institutions in Cambodia

and Sierra Leone, while Colombia and Malaysia have many active institutions.

In most countries in East Asia and the Pacific, laws do not

require courts to assist during arbitration proceedings with orders for production of evidence or appearance of witnesses. In contrast, 4 of the 5 IAB countries in South Asia legally require domestic courts to assist in arbitrations.

Many countries in Eastern Europe and Central Asia have

adopted special rules to ensure fast enforcement proceedings of arbitration awards, such as establishing special authorities outside the judiciary to issue writs of execution.

Source: Investing Across Borders 2010.

company. Arbitration of commercial disputes with public entities is also to represent it and can choose the language of the proceedings. The of arbitrators, local courts provide orders for provisional measures and the production of evidence. Compare the experience of a similar company incorporated in Bogota, Colombia. The company and its local partners can choose between ad hoc arbitration and the 3 well-established arbitration institutions in Bogota. But it is a challenge to navigate the legal framework. Four main decrees regulate arbitration in Colombia, along with other laws regulating issues such as fees for arbitration centers, recognition and enforcement of foreign arbitration awards, and investment arbitration. In addition, the foreign company can only appoint arbitrators who are Colombian nationals and licensed to practice law in Colombia. Arbitration proceedings must be conducted in Spanish. The company and its local partners do not have enough autonomy to customize arbitration as they would prefer. For governments interested in attracting foreign direct investment (FDI),

Why an effective commercial arbitration regime matters for foreign investors

mechanisms, is a top priority. A stable, predictable arbitration regime, as part of the broader framework for the rule of law, is one of the

Consider the following situation. A multinational corporation establishes

factors that drive foreign investment.

a subsidiary in a foreign country to manufacture, sell, and export

An effective commercial arbitration regime matters for foreign investors

household appliances. This company enters into contracts with domestic and foreign companies as well as public utilities. The contracts state how the companies will resolve commercial disputes should they arise. The subsidiary prefers to avoid court litigation, which can be slow and highly formal. The company must also ensure that contract disputes can be resolved through an efficient system that can be tailored to the dispute.

for 2 main reasons:

Complex commercial contracts require reliable, flexible dispute resolution mechanisms. Arbitration and other forms of alternative dispute resolution—such as mediation—give commercial parties considerable autonomy to create systems tailored to their disputes.4 The characteristics of arbitration—confidentiality,

The company wants to be able to rely on its in-house legal counsel and

flexible procedures, party autonomy, and easy enforcement—

to appoint decision-makers with qualifications related to the subject of

cater to businesses’ concerns in dispute resolution.5

the dispute. The company therefore decides to resolve its commercial

Companies often prefer to have alternatives to court litigation. For-

disputes through arbitration and includes arbitration agreements in all its

mal dispute resolution through domestic litigation can be slow and

contracts. Arbitration is a method of resolving disputes out of court. It is one

ineffective. Even if courts treat foreign companies fairly, domestic

tool out of several that are jointly called “alternative dispute resolution”.2

firms are more familiar with court procedures and can use their

The parties can design the arbitration process to fit their needs and the

own lawyers and language.6 Foreign firms view a well-established,

arbitration hearing is held in private with a binding decision given by

predictable arbitration regime as mitigating risk by providing legal

arbitrators, who play a similar role to judges. This company wants to

security to investors (including assurance of contract enforcement

be able to arbitrate certain disputes in the host country because of the

rights, due process, and access to justice).7

proximity of the evidence and the time and cost savings.

improving the rule of law, including the country’s dispute resolution

Investing Across Borders 2010

From a country’s perspective, not only does an arbitration regime assist in attracting FDI,

Figure 6.1: Many arbitration regimes are undeveloped and do not encourage FDI

but it eases the strain on local courts—which

The extent to which a country's arbitration regime is an obstacle to FDI, by region

are often congested and have huge case backlogs—by providing an alternative method

South Asia (5)

of dispute resolution that can have fewer and

East Asia & Pacific (10)

more flexible procedural rules than litigation.

Middle East & North Africa (5)

Straightforward commercial disputes, without

Sub-Saharan Africa (21)

public policy concerns, might not need to be

IAB global average (87)

litigated in domestic courts.

Eastern Europe & Central Asia (20)

Foreign companies prefer to use international

Latin America & Caribbean (14)

arbitration rather than domestic litigation to

High-income OECD (12)

resolve disputes, whether with a private party

No obstacle

or the state.8 Past studies have found that more than two-thirds of multinational corporations

Minor obstacle

Moderate obstacle

Major obstacle

Note: These results are based on the following question posed to local counsel of foreign investors in 87 countries: “Please rate the extent to which the quality of the legal framework for arbitration and mediation, including implementation, is an obstacle in your country.” Source: Investing Across Borders database.

prefer international arbitration, either alone or combined with other alternative dispute resolution mechanisms, to resolve cross-border disputes.9 Although international commercial arbitration is often the preferred method for resolving disputes, its availability and predictability are problematic in some regions. The Arbitrating Commercial Disputes indicators of the Investing Across Borders (IAB) project quantify the legal and practical challenges that foreign companies face when choosing to use arbitration in the host country of their investments. The current legal framework and practice for arbitration are perceived as a significant obstacle to foreign investors in South Asia, East Asia and the Pacific, and the Middle East and North

an arbitration tribunal can do if a jurisdiction

practitioners’ guides.13 However, there is

allows courts to intervene.

no report or online database that provides

At the same time, arbitration bears a close relationship to domestic courts at certain stages of the arbitration process—such as in the enforcement of arbitration awards. Accordingly, it is important that national courts support arbitration as a means of resolving commercial disputes.12 Although arbitration reforms can be undertaken independently, governments should keep in mind their overall institutional framework, and encourage judicial support of alternative forms of dispute resolution.

Africa (figure 6.1). Only in high-income OECD countries is the legal framework for arbitration

the problems faced by private investors when

Introducing the Arbitrating Commercial Disputes indicators

using commercial arbitration and other forms

The Arbitrating Commercial Disputes indicators

of alternative dispute resolution include lack

of the IAB project aim to measure the legal,

of awareness of alternative dispute resolution

institutional, and administrative regimes for

mechanisms in the country, lack of modern and

commercial arbitration in 87 countries across

coherent arbitration legislation, practice that is

the globe. The indicators focus on domestic

not always consistent with the legal framework,

and

and slow enforcement of arbitration awards by

between two companies, or contractual

local courts.10

disputes between a company and a state

generally perceived as only a minor obstacle or no obstacle to foreign investors. Some of

Corporations

want

simple

arbitration

proceedings with limited court intervention, and arbitration awards that are easily

international

commercial

arbitration

entity. The indicators also explore, to a limited extent, the regulation of commercial mediation.

enforced.11 Though many modern arbitration

A number of studies have been conducted in

statutes limit court intervention, there is little

the area of international arbitration, including perception surveys, legal assessments, and

consistent and objective data on commercial arbitration regimes and covers all world regions, including Sub-Saharan Africa; allows for cross-country benchmarking by translating qualitative information into numeric indicators; and

provides

in-depth

comparison

between countries on a regular basis. This is precisely how the Arbitrating Commercial Disputes indicators seek to add value. Further information is set out in the methodology chapter of this report and online.

Structure of the Arbitrating Commercial Disputes indicators The Arbitrating Commercial Disputes indicators comprise 3 principal components: 1. Strength of laws index (0–100): analyzes the strength of countries’ legal frameworks for alternative dispute resolution, as well as the countries’ adherence to the main international conventions related to international arbitration; 2. Ease of arbitration process index (0–100): assesses the ease of the arbitration process, and whether there are restrictions or other obstacles that the disputing parties face in seeking a resolution to their dispute; 3. Extent of judicial assistance index (0– 100): measures the interaction between domestic courts and arbitral tribunals,

Arbitrating Commercial Disputes

including the courts’ willingness to assist during the arbitration

studies (box 6.1). The methodology section of this report includes

process and their effectiveness in enforcing arbitration awards.

additional general case-study assumptions.

The Arbitrating Commercial Disputes indicators do not cover all aspects

The types of laws evaluated by the Arbitrating Commercial Disputes

of countries’ arbitration regimes. The methodology chapter of this report

indicators are set out in box 6.2.

and the online database provide guidance on how to interpret and use the data, as well as an extensive list of the indicators’ substantive and methodological limitations.

Results of the Arbitrating Commercial Disputes indicators

Assumptions underlying the Arbitrating Commercial Disputes indicators

This section examines a sample of results from the Arbitrating

To help ensure consistency across all 87 countries, the Arbitrating

arbitration. It illustrates how the data might affect investors when they

Commercial Disputes indicators are based on simple standard case

contemplate using commercial arbitration as a dispute resolution tool.

Commercial Disputes indicators in the context of a typical commercial

First, a brief summary of the principal stages of commercial arbitration is set out below (figure 6.2). The rest of this section describes the Box 6.1: Case-study assumptions and IAB definitions There are 2 different case studies relating to (i) domestic commercial arbitration and (ii) international commercial arbitration.

The first case study relates to a domestic arbitration between 2 companies incorporated in the same country. Company A is 100% foreign-owned by a multinational corporation.

indicators’ results for each of the key steps and phases in the arbitration process.

Figure 6.2: Key steps of an arbitration process (simplified) PHASE 1: Parties enter into commercial contract and include arbitration clause

Company B is owned by a domestic investor.

The second case study relates to an international arbitration between the local Company B and a multinational Company C, which is incorporated and operates in a foreign country. Both arbitrations take place in the same country.

PHASE 2: Dispute arises and arbitration proceedings commence

Accordingly, IAB assumes 3 different types of arbitral awards:

A domestic arbitration award given in the respective host country.

An international arbitration award given in the respective host country in favor of a foreign company.

PHASE 3: Arbitration Award is rendered

A foreign arbitration award rendered in a foreign country following arbitration proceedings in a country other than the host country. Respondents are asked questions relating to the domestic and international arbitration regime and process in their host country, as well as the ease of enforcing domestic and foreign awards.

Parties voluntarily comply with the arbitration award

PHASE 4: Losing party refuses to pay/challenges the award

Court proceedings to enforce the award in court Box 6.2: Key laws measured by the Arbitrating Commercial Disputes indicators The Arbitrating Commercial Disputes indicators evaluate the following types of laws insofar as they relate to alternative dispute resolution (arbitration and mediation):

Alternative dispute resolution laws (including civil code

provisions) on commercial arbitration and on mediation and leading court decisions.

Civil codes, civil procedure codes/rules, regulations. Investment laws and codes. Ratification of international treaties: New York Convention; ICSID Convention.

Investing Across Borders 2010

Award is enforced in court

Award is set aside in court

Phase 1: The parties enter into a commercial contract and include an arbitration agreement When 2 companies enter into a commercial contract, they must decide how to resolve a dispute that might arise from a breach of that contract. Given its advantages, the companies might voluntarily agree to use commercial arbitration to resolve their dispute. They might also

choose to use other mechanisms for alternative dispute resolution, such as mediation, where the parties attempt to reach a mutual settlement with the help of a mediator. Alternatively, they might decide to rely on traditional litigation in

Figure 6.3: Only 34% of countries have mediation laws, but 92% have arbitration laws Share of countries with a specific law on commercial arbitration

the host country’s domestic courts. Assuming

Share of countries with a specific law on commercial mediation 34% have a mediation law

8% do not have a law

that the parties agree to include an arbitration clause in their contract, there are several issues that arise for their consideration at the drafting stage of the contract.

66% do not have a mediation law

92% have a law

Does the host state recognize arbitration, and if so, how? Given that the arbitration process is usually governed by the law of the host state, it is important to know whether arbitration is even

Source: Investing Across Borders database. Source: Investing Across Borders, 2010

recognized as a dispute resolution mechanism in that country. Our survey results show that arbitration is recognized as a dispute resolution tool in all 87 countries in our sample. Of those countries, 92% have a specific commercial arbitration statute or a chapter in a civil code setting out provisions governing commercial

Figure 6.4: Countries need to exploit technology to improve investors’ access to laws Ease of access to arbitration statutes online 17% do not have laws online

arbitrations in their country. The other 8% have some provisions scattered throughout civil

The disparity in treatment between the 2 regimes ranges from minor differences to entirely separate procedures. In Mauritius, the law governing domestic arbitrations specifies that there must be one arbitrator (or an odd number). However, the law governing international arbitrations specifies that there must be 3 arbitrators (or an odd number). In

codes or other laws which do not provide

France, domestic awards can be appealed but

sufficient regulation of arbitration. These

international awards cannot be. In Morocco,

countries are Albania, Argentina, Bosnia

the law governing domestic arbitrations is

and Herzegovina, Ethiopia, Montenegro, Liberia and Poland. In comparison, only

more detailed than that governing international

83% have laws online

arbitrations, and in Saudi Arabia, 2 domestic entities are obliged to hold their arbitration in

34% of the 87 countries have a formal law regulating commercial mediation (figure 6.3). Having such laws gives parties the security

Source: Investing Across Borders database.

Although governments might have legitimate

of predictability and enhances the country’s appeal as a legal forum for domestic as well as international disputes.

general development of a country’s business climate. Improvements in access to information will also encourage economic change.15�

Is the law easily accessible? To facilitate access to information, arbitration laws should be available online. Eighty-three

Does the law differentiate between domestic and international arbitrations?

percent of countries in our sample were able

The companies should also consider whether

to provide Web sites where these laws could be found (figure 6.4). However, many of these sites were not official government sources but rather Web sites of private law firms, which provide laws for their clients’ purposes. In contrast, 96% of countries provide official government

Web

sites

relating

establishment of companies.

the

As technology

continues to develop, ease and speed of access to information is becoming paramount, not only for foreign investors, but also for the

Saudi Arabia.

policy reasons for having separate regimes, there are fundamental concepts in arbitration that should be the same for both domestic and international regimes, including party autonomy

and

arbitrators’

impartiality,

discussed below.

in the national law as an international or

Is the foreign-owned company considered a domestic or foreign entity?

domestic arbitration, as the 2 regimes could be

It should be noted that in countries that

their respective arbitration is characterized

regulated in a different manner. The definitions for domestic and international arbitrations used by the Arbitrating Commercial Disputes indicators are set out above (box 6.1). In our sample, 54% of the countries have distinct regimes

for

arbitrations.

domestic

and

international

treat domestic and international arbitrations differently,

foreign-owned

but

locally

incorporated companies will want to know whether they can use the less restrictive regime (usually international arbitration). In the case of Bulgaria, the arbitration law considers a foreign-owned company as foreign, even if it is locally incorporated. As a result, this

Arbitrating Commercial Disputes

company would fall under the international

liberal approach to the meaning of a written

commercial arbitration regime in Bulgaria.

arbitration agreement, and an oral agreement

Chile and Turkey follow this example.

that is recorded in any form constitutes

Most countries in our sample that differentiate between domestic and international arbi trations, however, consider a foreign-owned but locally incorporated company as domestic. For example, in Azerbaijan, Brazil, China, Colombia,

Croatia,

Honduras,

India,

Ecuador,

Georgia,

an arbitration agreement.16 Countries that recognize

oral

agreements

binding

arbitration agreements include Canada, Cameroon, Chile, France, Mozambique, Sri Lanka and the United Kingdom.

Madagascar, Mauritius, Mexico, Korea,

Do the parties have freedom of choice in how to conduct their arbitration proceedings?

Romania, and Spain a locally incorporated

As described above, arbitration provides a

entity

Ireland,

considered

Kazakhstan,

domestic

entity

regardless of its foreign ownership or control. Parties should accordingly understand how their company is characterized under domestic law, in order to know which arbitration regime applies. There might be legitimate policy reasons for having restrictions in the domestic regime, for example, in relation to the language of the arbitration process. Nonetheless, governments should consider that if they have different regimes, local companies with predominantly foreign ownership will want to fall under the less restrictive regime, given the international element in their corporate structures.

Governments

should

therefore

consider whether international arbitration

flexible choice for dispute resolution, which is very attractive to companies. Parties can choose how to run their arbitration process, deciding whether the arbitration should be administered by a specific arbitral institution (or whether it is ad hoc),17 determining the qualifications of the arbitrators and selecting the language of the proceedings. Domestic laws,

however,

might

out

The party autonomy index is an aggregate index that evaluates countries’ laws in relation to the parties’ freedom of choice in choosing: Arbitrators of their choice

Foreign counsel to represent them in the arbitration proceedings

Language of the proceedings Any arbitral institution arbitration.18 In Sub-Saharan Africa, however, there is often a disconnect between the strength of legal provisions and arbitration practice on the ground. The reform of arbitration systems should therefore be extended to the level of practice. Such reform would also assist in developing domestic legal institutions.

certain

The Middle East and North Africa region,

restrictions that limit the parties’ freedom in

in contrast, has several restrictions on party

organizing

The

autonomy, including the choice of language

Arbitrating Commercial Disputes indicators

of the proceedings. In the Latin America and

assess the parties’ freedom of choice by

the Caribbean region, many countries have

aggregating certain elements of choice into

protectionist legal regimes that affect party

a party autonomy index (box 6.3).

autonomy. For example, foreign counsel is not

arbitration

set

Box 6.3: Components of IAB party autonomy index

proceedings.

permitted to represent parties in arbitration

should be liberally defined in their laws.

Results show that high-income OECD countries

proceedings, even if counsel does not appear

are the most liberal in promoting party

before the domestic courts. This is the case

What are the formal requirements for an arbitration agreement?

autonomy (figure 6.5). Sub-Saharan Africa

in Argentina, Bolivia, Brazil, Costa Rica,

also scores highly. Many of these countries

Ecuador, Guatemala, and the República

Some countries set formal requirements for

have recently adopted modern legislation

Bolivariana de Venezuela for both domestic

the conclusion of arbitration agreements that

that recognizes fundamental principles of

and

international

arbitrations.

Countries

need to be followed. In circumstances where the contract is considered invalid for example, because the contract is against a country’s public policy, the arbitration agreement contained therein might still be autonomous

Regional comparison of party autonomy index (100=full autonomy)

and binding. Such “severability” of the

100

arbitration agreement provides parties with

the security that they have an effective dispute resolution mechanism in place. Eighty-six percent (86%) of the countries in our sample recognize severability of the

40 30 10

not have to be “written” in the traditional

Investing Across Borders 2010

good arbitration practice is adopting a

recognize that an arbitration agreement does

of the UNCITRAL Model Law illustrate,

arbitration agreement. However, only 10%

sense of the word. As the Revised Articles

Figure 6.5: Which countries provide parties with most flexibility?

Latin America Middle South Asia & Caribbean East & (5) (14) North Africa (5)

Source: Investing Across Borders database.

East Asia Eastern IAB global Sub-Saharan High-income & Pacific Europe & average Africa OECD (10) Central Asia (87) (21) (12) (20)

BOX 6.4: IAB countries without an active arbitral institution

Figure 6.6: Parties are most restricted in selecting arbitrators in South Asia Degree of party autonomy to select arbitrators, by region (100=full autonomy) 100

93 78

Ten countries have no arbitral institution, which is indicative of a weak or nonexistent domestic arbitration practice:

Afghanistan, Angola, Bangladesh, Cambodia, Kosovo, Montenegro, Papua New Guinea, Rwanda, Sierra Leone, and Solomon Islands.

60 40

Some countries have institutions that are no longer active, such as Ethiopia and Liberia.

20 0

South Asia (5)

IAB global Latin America Middle Eastern average & Caribbean East & Europe & (87) (14) North Africa Central Asia (5) (20)

East Asia & Pacific (10)

Sub-Saharan High-income Africa OECD (21) (12)

that were completed in 2008, the number of qualified arbitrators, and of those, how many are women (table 6.1).

Source: Investing Across Borders database.

such as Bolivia, Brazil, Chile, Costa Rica,

restrictions do not apply to international

and Ecuador also require that arbitration

arbitrations. The principal reason why the

proceedings be conducted in Spanish,

South Asia region scores poorly is the lack of

particularly in domestic arbitrations.

regulation on this matter in Afghanistan.

The extent to which national law restricts parties from selecting an arbitrator of their choice is examined below, taking into account restrictions based on nationality, gender and

Phase 2: A dispute arises under the contract and arbitration proceedings commence

Some countries have several arbitral institutions, which is a strong indication of a thriving arbitration practice. The East Asia and the Pacific region includes countries with numerous operational and active arbitral institutions, including China, Indonesia, Malaysia, Singapore, and Thailand. In some countries, external arbitral institutions, such as the ICC in China and Malaysia, have also started to administer arbitrations due to

professional qualifications (figure 6.6).

Phase 2 looks at what occurs if a dispute

growing demand.19 Latin America and the

arises and the aggrieved party commences

Caribbean also has active arbitral institutions,

Spain is the only high-income OECD country

arbitration

parties

with Argentina, Brazil, Chile, Colombia, and

that restricts parties’ abilities to select the

have agreed that an arbitral institution will

Mexico having several arbitral institutions in the

arbitrators’

administer the arbitration, the relevant rules

capital, as well as in other major cities in the

of that institution will guide the arbitration

country.

nationality

and

professional

qualifications in domestic arbitrations. Many

middle-income

countries

have

restrictions regarding parties’ choice of an arbitrator. In Eastern Europe and Central Asia, many countries’ laws specify that arbitrators be locally barred lawyers in domestic

arbitrations,

for

example,

Azerbaijan, Bosnia and Herzegovina, the Kyrgyz Republic, Kazakhstan, and the Russian Federation. In some countries in the Middle East and North Africa region women are rarely appointed as arbitrators, for example, in Saudi Arabia and the Republic of Yemen. In general, regulation is stricter for domestic arbitrations than for international ones.

proceedings.

the

procedure. The rules might specify arbitrators’ fees, the time frame for the submission of pleadings, and the procedural timetable.

Are technological advances being applied? The parties might also have the option of

Is there a domestic arbitral institution that can administer the arbitration?

choosing electronic or online arbitration,

The existence of a functioning arbitral

and logistics.

institution in a country is an indication of a

especially effective for small commercial

solid arbitration practice and a useful channel

disputes or domestic disputes. Such disputes

that can be used to improve resources,

can be simpler, and less administratively

public awareness and education relating to

intensive than international disputes. They

arbitration. Most surveyed countries have at

therefore benefit greatly from the speed of

least one active arbitral institution but there

online communication and being able to

are still some which do not (box 6.4).

avoid hearings in person, such as procedural

which can significantly cut down on costs Online arbitration can be

hearings to regulate the arbitration process.

In Azerbaijan, Colombia, Ecuador, and

Certain criteria reveal an active arbitration

Vietnam, for example, the parties can only

culture

African

Only 10% of the IAB countries have developed

choose someone with legal qualifications

countries.

whether

the technology to offer online arbitration

and certain language skills to act as an

the institution administers arbitrations and

as a method of administering commercial

arbitrator in their domestic arbitration. These

mediations, the number of domestic arbitrations

disputes (figure 6.7). However, as technology

several Such

Sub-Saharan

criteria

include

Arbitrating Commercial Disputes

Table 6.1: Arbitral institutions in a sample of Sub-Saharan African countries Does the institution administer arbitration and mediation?

Number of domestic arbitrations completed in 2008

Number of qualified arbitrators on roster

Percentage of women arbitrators on roster

Country

Institution

Burkina Faso

Centre d’arbitrage, médiation et conciliation d’Ouagadougou

Yes

15%

Ghana

Ghana Arbitration Centre

Yes

Kenya

Dispute Resolution Centre (Nairobi)

Yes

10%

Mali

Chambre de Commerce et d’Industrie du Mali—Chambre de conciliation et d’arbitrage

Yes

3–4%

Mozambique

CACM Centre for Arbitration Conciliation and Mediation

Yes

187

30%

Nigeria

Regional Centre for International Commercial Arbitration

Yes

Senegal

Centre d’arbitrage, conciliation et de médiation - Chambre de Commerce et d’Industrie et de l’agriculture de la région de Dakar

Yes

120

40%

South Africa

The Arbitration Foundation of Southern Africa (AFSA)

Only arbitration

625

Zambia

Zambia Centre for Dispute Resolution Ltd.

Yes

261

22%

Source: Investing Across Borders database.

develops, it is expected that online arbitration

order from the domestic court forcing such

Results show that East Asia and Pacific

will continue to offer cost and time savings to

production. Similarly, if any interim measures

countries lag behind, mainly because local

disputing parties.

are required, such as freezing assets, making

laws do not expressly provide for domestic

interim payments, or seizing property, the

courts to assist the arbitration process with

domestic courts must be approached by the

orders for production of documents or

respective party seeking the order or by the

appearance of witnesses, as is the case in

arbitrators.

China, Indonesia, Papua New Guinea, and

Are the courts supportive of arbitral tribunals during arbitration proceedings? During arbitration proceedings, domestic courts may be required to support arbitral tribunals, notably in relation to third parties over whom arbitral tribunals have no authority. For example, if a party refuses to produce key witnesses or certain documents as part of their evidence, the other party can seek an

Figure 6.7: Which countries offer online arbitration? Countries that offer online arbitration as a method of dispute resolution 10% of countries have online arbitration

90% of countries do not have online arbitration

It is important that domestic laws contain explicit

provisions

for

domestic

Vietnam (figure 6.8).

courts

There are fewer legal provisions requiring

assistance with the production of evidence

domestic courts to assist with the arbitration

and with provisional measures. The court

process in Eastern Europe & Central Asia

assistance index (box 6.5) feeds into the

and the East Asia & Pacific region than in

overall extent of judicial assistance index,

other regions. Moreover, having such legal

and examines the extent to which domestic

provisions for court assistance, does not

courts support the use of arbitration as a tool

necessarily translate into practice (table 6.2).

to resolve disputes.

In contrast, 4 of the 5 IAB countries in the South

Asia

region

(Bangladesh,

India,

BOX 6.5: Components of IAB court assistance index The court assistance index evaluates 4 issues:

Whether local courts follow a general policy in favor of enforcing domestic and international arbitration agreements, a “pro-arbitration policy”

Whether tribunals are able to decide whether a dispute falls within their own jurisdiction or competence as opposed to domestic courts deciding the forum

Whether the national law provides for local courts’ assistance with orders on the production of evidence or the appearance of witnesses

Source: Investing Across Borders database.

Investing Across Borders 2010

Whether the national law provides for local courts’ assistance with orders of interim relief

implies that countries that have a strong rule

Figure 6.8: Court assistance is weak in Eastern Europe & Central Asia and East Asia & the Pacific

of law21 also tend to have good arbitration regimes. Such a comparison suggests that where the broader legal climate and public

IAB regional average index of the degree of court assistance with arbitration proceedings (100 = maximum assistance)

legal institutions are effective, arbitration regimes can thrive.

Eastern Europe & Central Asia (20)

Once the parties in a dispute have submitted

51 East Asia & Pacific (10)

their arguments and evidence, there is an

Sub-Saharan Africa (21)

arbitration hearing in the chosen country. The

Latin America & Caribbean (14)

arbitral tribunal renders a binding arbitration award,22 specifying which party has won,

and the compensation the company is entitled

IAB global average (87)

to receive. The issues which might concern the

South Asia (5)

parties at this stage of the arbitration process,

Middle East & North Africa (5)

are explored below.

High-income OECD (12) 0

100

Source: Investing Across Borders database.

Are arbitrators obliged to be independent and keep arbitration confidential? One

Table 6.2: Domestic courtsâ&#x20AC;&#x2122; willingness to provide interim relief in international arbitration proceedings: sample of Eastern European and Central Asian countries

the

perceived

advantages

commercial arbitration is that proceedings are typically confidential, unlike in litigation cases where court judgments are published. Confidentiality is an important aspect of

Country

Does the law expressly provide for courts to assist arbitrators by providing interim relief in international arbitrations?

In practice, how often do courts agree to assist by providing interim relief in international arbitrations?

Albania

Rarely

Armenia

Yes

Usually

Belarus

Yes

Rarely

Bosnia and Herzegovina

Rarely

Bulgaria

Yes

Usually

Georgia

Rarely

Kosovo

Yes

Rarely

Kyrgyz Republic

Usually

Montenegro

Yes

Rarely

to confidentiality of arbitration proceedings,

Russian Federation

Yes

Rarely

whereas in Morocco and the Republic of

Ukraine

Rarely

Yemen in the Middle East and North Africa

obliged to keep the proceedings confidential, as well as remain impartial and independent during the arbitration process (box 6.6). Many laws in South Asian, East Asian and the Pacific, and the high-income OECD countries do not expressly bind the arbitrators

region they do (figure 6.10). The SubSaharan Africa countries governed by the cannot just examine arbitration in isolation.

requiring courts to assist with interim relief, and

There is a relationship between private

the lawyers have responded in all countries

arbitral proceedings, domestic courts, and

that, in practice, the courts usually provide the

the general legal climate of a country, that

assistance requested.

can be explored through a comparison

strength of their arbitration regimes, they

and independent, without a bias toward at whether laws specify that arbitrators are

Pakistan, and Sri Lanka) have legal provisions

When countries attempt to improve the

Furthermore, arbitrators should be impartial either party. The tribunal integrity index looks

Source: Investing Across Borders database.

How does judicial support of arbitration proceedings enhance the strength of the rule of law?

arbitration at all stages of the process.

of the Rule of Law index of the Worldwide Governance Indicators (WGI)

with the

Arbitrating Commercial Disputes extent of judicial assistance index (figure 6.9). Results

OHADA Uniform Act on Arbitration, namely, Burkina Faso, Cameroon, CĂ´te dâ&#x20AC;&#x2122;Ivoire, Mali, and Senegal also specifically provide for confidentiality of the proceedings. All Eastern Europe and Central Asia countries in our sample have legal provisions asserting the independence and impartiality of the arbitrators in international arbitrations, with the exception of Albania23 and Montenegro.

show that there is a strong positive correlation between these 2 measures. This correlation

Arbitrating Commercial Disputes

Figure 6.9: Countries with a strong rule of law tend to have efficient arbitration regimes Correlation between the Worldwide Governance Indicators (WGI) and IAB Arbitrating Commercial Disputes scores

What is the expertise of the domestic court in enforcement proceedings? Domestic courts that have sufficient expertise to deal with arbitration awards will ensure an efficient enforcement process. Given the technical nature of arbitration awards, high level courts or specially designated courts, rather than lower-level general courts of first

IAB Extent of Judicial Assistance Index (0-100)

instance, are more appropriate for dealing capably and consistently with commercial arbitration awards.27 Of the 87 countries sampled, less than half designate a higher-level or specialized court to handle foreign arbitration awards, for both domestic and international arbitration awards (figure 6.11). Eastern Europe and Central Asia has the highest share of countries (60% of the countries in the region) that designate a high level court with the supervision power to conduct both procedural and substantive examination over domestic and foreign arbitral awards. In Sub-Saharan Africa, 57% of the countries sampled designate a high-level court. The share in East Asia and the Pacific is 50%. Of the high-income OECD countries surveyed by IAB, the United Kingdom and Ireland grant such WGI Rule of Law Normalized Score (-2.5 - 2.5)

supervision power to a high level or a specially designated court/ judge.28

Source: Investing Across Borders database and Worldwide Governance Indicators (WGI), World Bank Group.

Designating a special court to handle enforcement proceedings may not be necessary or even practical in large countries or in countries with a high volume of enforcement proceedings where judges are

Phase 3: Once an award is rendered, it can be complied with, enforced, or set aside

knowledgeable about the process and issue consistent decisions. In smaller countries with little arbitration practice, however, lower-level courts can have difficulty applying newly enacted arbitration laws and

The previous 2 sections explore what happens when parties enter into

self-executing international conventions. In such countries, endowing a

an arbitration agreement at the contractual stage of their relationship,

higher court to enforce or vacate domestic awards could ensure faster

and trace the arbitration process from when a dispute arises until

and more predictable results.

arbitrators decide on a final and binding arbitration award. Once an arbitration award is rendered, the losing party must compensate the

How long does it take to enforce an arbitration award?

winning party. In most cases, the parties voluntarily comply with the

On average across the globe, it takes 179 days to enforce an arbitration

award, and no further action is necessary.24 If the losing party refuses

award in court. This is measured by asking private practitioners to

to pay, the winning party may bring enforcement proceedings in the

estimate the length of time from filing an application for enforcement of

local courts.25 Alternatively, the losing party may dispute the arbitration

an arbitration award (handed out in the respective country) to attaching

award and ask the domestic court to set it aside or annul it.26

the losing party’s assets (figure 6.12). It does not take into account the length of an appeal, which can greatly increase the length of time. As can be imagined, the length of enforcement of an award is a very important consideration for the winning party. There is no point in having an award if it cannot be enforced in an easy and timely

BOX 6.6: Components of IAB tribunal integrity index The tribunal integrity index is an aggregate index that measures whether countries have legal provisions that relate to:

Arbitrators’ independence in the proceedings Arbitrators’ impartiality in the proceedings Arbitrators’ confidentiality of the proceedings/award It further examines whether countries discriminate between how they regulate arbitrators in domestic arbitrations and international arbitrations.

Investing Across Borders 2010

manner, and the winning party can collect easily. The South Asia region is the slowest to enforce domestic arbitration awards. Within the region it takes longest to enforce a domestic or international arbitration award in Pakistan (table 6.3). As respondents note, however, this might be because domestic courts are slow and there are no specific enforcement periods in the law. Accordingly, periods of enforcement vary from case to case, and in general, it is a lengthy process.

Figure 6.10: All but 2 Eastern Europe and Central Asia countries have legal provisions asserting the independence and impartiality of arbitrators in international arbitrations

Figure 6.11: Fifty-five percent (55%) of countries enforce foreign arbitration awards in general first instance courts

Regional comparison on the tribunal integrity index (100=maximum) Eastern Europe & Central Asia (20)

Middle East & North Africa (5)

Share of countries that use a specialized or higher level court in enforcement proceedings 45% of countries have a higher court

Latin America & Caribbean (14) IAB global average (87)

Sub-Saharan Africa (21)

55% of countries do not have a higher court

High-income OECD (12) 55

East Asia & Pacific (10) 30

South Asia (5) 0

100 Source: Investing Across Borders, database

Source: Investing Across Borders database.

Many countries in Eastern Europe and Central Asia have adopted special rules to ensure a speedy and uninterrupted enforcement process: eliminating the possibility for an appeal of the first instance court decision

Figure 6.12: It takes roughly 4 months to enforce an award in the high-income OECD countries Regional average of the number of days to enforce an arbitration award in court

on enforcement (for example Romania) and

South Asia (5)

establishing a special authority outside of the

Middle East & North Africa (5)

judiciary, which issues a writ of execution for extreme, courts in South Asia and Latin America

Latin America & Caribbean (14)

and the Caribbean can take several years to

IAB global average (87)

enforce an arbitration award, and longer if

Sub-Saharan Africa (21)

an appeal(s) is made. This undermines the

Eastern Europe & Central Asia (20)

215 206 179 157 123

High-income OECD (12)

resolution process through arbitration.

Foreign awards might require recognition proceedings

288

East Asia & Pacific (10)

7 days (for example Georgia). At the other

benefit of a faster and more efficient dispute

388

100

118 150

200

250

300

350

400

450

Source: Investing Across Borders database.

Imagine arbitration proceedings taking place in Paris between an Indian and a Chilean multinational company. The Chilean company wins and wants to attach assets held by the

Table 6.3: The longest period for enforcement in South Asia is the attachment of assets Average number of weeks for enforcement proceedings for an arbitration award in South Asia.

Indian company in New Delhi. This foreign arbitration award will need to be â&#x20AC;&#x153;recognizedâ&#x20AC;? by Indian courts before it can be enforced. Recognition is the process by which the domestic courts of a country give validity to

Country

Average time from filing an application of enforcement to the hearing (weeks)

Average time from the date of the first hearing to the first instance court decision (weeks)

Average time from the final court decision to the writ of execution attaching assets (weeks)

Total average time from filing to attachment (weeks)

a foreign arbitration award. Given the extent

Afghanistan

No practice

N/A

of cross-border transactions in todayâ&#x20AC;&#x2122;s world,

Bangladesh

as well as the numerous locations for holding

India

assets, recognition of an award can be a very important stage of the arbitration process.

Pakistan

115

Sri Lanka

103

Source: Investing Across Borders database.

Arbitrating Commercial Disputes

There are international legal instruments, such as conventions and treaties, to help regulate recognition. The 1958 New York Convention on the Recognition and Enforcement of Arbitration Awards (New York Convention) is the most global of these conventions. It

Commercial arbitration with the state and state entities Consider

briefly

another

element

example, if a company enters into a contract with a state-owned oil company, can they use of

commercial arbitration—arbitrating with the state and its entities.

arbitration to resolve their disputes? Are there any restrictions on arbitrating over certain subject matters, such as natural resources or concession agreements? Of the 87 countries

requires that the domestic courts of contracting

Arbitrating with the state is a specialized form

in our sample, 17 countries restrict foreign

states give effect to arbitration agreements

of arbitration. The dispute might arise from an

companies’ abilities to arbitrate disputes arising

and recognize and enforce awards made

alleged breach on the part of the host state

from specific types of contracts with the state or

in other states, subject to limited exceptions

of an investment treaty.29 As discussed above,

state entities (table 6.4).

discussed above. It is therefore a powerful

Arbitrating Commercial Disputes indicators

instrument in international arbitration, and

do not examine investment treaty arbitration

is widely subscribed to by 142 countries.

in any detail. However, looking at which

Is there a designated point of contact with a state entity?

Nonetheless, there are still 7 of the sampled

countries have signed the ICSID Convention

Certain countries have designated special

countries that have not yet ratified the New

provides further evidence of the strength of a

agencies or units in the government to deal with

York Convention: Angola, Ethiopia, Kosovo,

country’s general arbitration climate. Of the 87

claims against the state. These countries tend

Papua New Guinea, Solomon Islands, Sudan

countries, 17 have not yet ratified the ICSID

to have more streamlined methods of handling

and the Republic of Yemen.

Convention: Angola, Bolivia, Brazil, Canada,

claims than countries with no established

Ethiopia, Ecuador, India, Kyrgyz Republic,

point of contact for disputes involving public

How long does it take to enforce a foreign award?

Mexico, Moldova, Montenegro, Papua New

entities. In particular, IAB data illustrates that

Guinea, Poland, Russian Federation, South

regions that have experienced investor-state

In most countries, enforcement of foreign

Africa, Thailand, and Vietnam.

arbitrations in the past often appoint an

awards takes more time than domestic awards due to long recognition proceedings and the additional documentation required. For example, the Latin America and the Caribbean

region

experiences

lengthy

The Arbitrating Commercial Disputes indicators do investigate the ability of a party to arbitrate with a state or state entity disputes arising out of contracts with foreign-owned companies. For

authority in the government to manage such cases, thereby facilitating proceedings. More than half of the Middle East and North Africa and high-income OECD countries sampled have designated a special public authority

proceedings in executing the award because recognition proceedings are still required in many countries in the region (for example Brazil, Colombia and Mexico), they are separate from the enforcement proceedings, and different courts are involved in both. In

Table 6.4: Restrictions on arbitrating with the state or state companies IAB-surveyed countries with restrictions

Restricted arbitrability of concession agreements

Restricted arbitrability of contracts dealing with natural resources

addition, there are multiple possibilities for

Belarus

appeal of the first instance court decision on

Bolivia

enforcement of foreign awards. Countries such

Costa Rica

as Mexico and Brazil even allow a special

France

appeal of the first instance enforcement

Georgia

decision before the Constitutional Court. Such “constitutional” appeal is not observed in any

X X

Guatemala

Kazakhstan

America and the Caribbean designate a

Madagascar

high-level court to vacate domestic awards.

Mexico

However, 50% of the IAB countries in the Latin

Poland

America and the Caribbean region designate

Romania

a high court to rule on the recognition of

Russian Federation

foreign arbitration awards: Bolivia, Brazil,

Saudi Arabia

Tunisia

Ukraine

United States

Venezuela, RB

other region. None of the countries in Latin

Chile, Colombia, Costa Rica, Honduras, and Nicaragua.

Source: Investing Across Borders database.

Restricted arbitrability of infrastructure contracts

Investing Across Borders 2010

X X

to handle administrative, logistical, and other issues related to investors’ disputes with the state or a state entity (figure 6.13). Examples include the Department of International Law in the Ministry of Finance of the Czech Republic, the Legal Council of State in Greece, or the Office of the Assistant Legal Advisor for International Claims and Investment Disputes within the Department of State’s Office of the Legal Advisor in the United States. In contrast, none of the countries in the South Asia region have a designated authority to deal with claims against the state.

Figure 6.13: Relatively few countries designate a public authority Share of countries in each region that have designated a public authority to handle administrative, logistical, and other issues related to arbitration with the state 100 80 60

50% 41%

43%

20% 0% South Asia (5)

The Arbitrating Commercial Disputes indicators illustrate that most countries recognize the importance of an efficient, stable regime for

60%

40 20

Conclusions

58%

57%

Eastern IAB global Sub-Saharan East Asia Europe & average Africa & Pacific Central Asia (87) (21) (10) (20)

Latin High-income Middle America & OECD East & Caribbean (12) North Africa (14) (5)

Source: Investing Across Borders database.

alternative dispute resolution in their efforts to attract foreign investment. Motivated by the growing preference of businesses to use arbitration to resolve commercial disputes, countries have made substantial

progress

improving

their

arbitration frameworks. Countries with good scores on the Arbitrating Commercial Disputes indicators have focused on modernizing their legal frameworks and ensuring their consistent implementation. Countries that score well also work on increasing awareness, resources, and court support to ensure that their arbitration regimes are effective and in compliance with international standards. The Arbitrating Commercial Disputes data for the 87 countries surveyed show that countries which perform well on the indicators share the following characteristics:

Clear arbitration provisions consolidated in one law or a chapter in a civil code. Having coherent, up-to-date, and easily accessible legislation increases legal certainty and transparency.

Strong party autonomy to tailor arbitration proceedings. Good arbitration regimes provide a flexible choice for commercial dispute resolution, which is very attractive to companies. Parties should be able to choose how to run their arbitration process including deciding whether

arbitration will be ad hoc or administered by a specific arbitral institution, determining the qualifications of the arbitrators and selecting the language of the proceedings. Such flexibility should be available to the extent possible for both domestic and international arbitration proceedings in the same country.

Strong arbitration laws (de jure) in line

resolve disputes.

Adherence to international conventions. Adherence to and implementation of international and regional conventions on arbitration such as the New York Convention and the ICSID Convention signal a government’s commitment to the rule of law and its investment treaty obligations, which reassures investors. Countries with

with arbitration practice (de facto). Many

good arbitration regimes are members of

countries have enacted modern arbitration

the main international arbitration conven-

laws. But practice is rare or nonexistent,

tions and regional treaties which regulate

and where it does exist, it often does not

or provide for arbitration.

conform to the law. Having a strong legal regime should be associated with a healthy arbitration practice, supportive domestic courts, and solid awareness of what arbitration entails as a dispute resolution tool.

Supportive local courts. A good arbitration regime is associated with strong support from local courts for arbitration proceedings and consistent, efficient enforcement of arbitration awards. In many countries courts perceive arbitration as a threat to their jurisdiction. They have not articulated pro-arbitration policies and do not always support tribunals with interim

The Arbitrating Commercial Disputes indicators measure the clarity and effectiveness of ADR regulation, including the reliability and stability of the arbitration frameworks and fast and predictable enforcement processes. This report has presented examples of countries at various levels of income and institutional development

that

have

well-established

systems for alternative dispute resolution. The Arbitrating Commercial Disputes indicators should stimulate interest in reforms, identify good practices that countries can learn from, and enhance knowledge of arbitration.

injunctions or orders related to evidence. Many countries have extremely long enforcement proceedings, which undermine arbitration as a faster and cheaper way to

Arbitrating Commercial Disputes

Endnotes 1 Some of these countries have some arbitration provisions as part of other laws but they do not contemplate sufficient minimum regulation of arbitration in the country (for example, the Law on Chamber of Commerce of Montenegro contains provisions enabling the establishment of an arbitration court within the Chamber of Commerce). 2

See glossary for definitions.

UNCTAD (2005).

5 PwC and Queen Mary University (2006). In a 2006 survey, conducted by PriceWaterhouseCoopers, more than 150 international companies cited flexibility, enforceability, privacy, and selection of arbitrators as the 4 most important advantages of international commercial arbitration as a dispute resolution mechanism. See also, UNCTAD (2005). 6 PwC and Queen Mary University (2006); UNCTAD (2005). 7

Moran and West (2005).

USAID (2005); USAID (1998).

PwC and Queen Mary University (2006).

10 These are some of the problems pointed out by IAB survey respondents in 87 countries, Investing Across Borders (2010). 11 As proved by the results of the survey conducted by PwC and Queen Mary University (2006). 12 Ball (2006), p. 73. 13 See, for example, ICC International Court of Arbitration Bulletin (2008); Wegen, Wilske, and Lutz, eds., (2010); Rowley, ed., (2006); The International Comparative Legal Guide (2009); PwC and Queen Mary University (2006); PwC and Queen Mary University (2008).

Investing Across Borders 2010

14 61/33. Revised articles of the Model Law 25 Enforcement proceedings are legal proceedings on International Commercial Arbitration of the that take place in the domestic court where the United Nations Commission on International assets are located. They convert an arbitration Trade Law, and the recommendation regarding award into a court judgment, which the winning the interpretation of article II, paragraph 2, and party can then rely upon to collect the money article VII, paragraph 1, of the Convention on the owed to him. Recognition and Enforcement of Foreign Arbitral 26 Proceedings to set an arbitration award aside Awards, done at New York, 10 June 1958. are legal proceedings requesting domestic 15 See the Starting a Foreign Business chapter of this courts to order that the arbitration award have report. no effect and that it is invalid on certain limited grounds. 16 Malecki (1997). 27 Chen, (2005), p. 4, available at http:// 17 Ad hoc arbitrations are not administered by www.oecd.org: “…[I]n order to more strongly arbitral institutions, but rather require parties to prevent the reverse and negative effect of “local formulate their own rules governing the procedure protectionism” imposed on the recognition and of the arbitration, the selection of arbitrators, etc. enforcement of a foreign award, and also in 18 Angola’s law, for example, is from 2003, Sudan’s order to more effectively prevent the possible from 2005, and Mauritius’s and Rwanda’s from mistakes made by some judges of local courts 2008. in judicial examination and supervision over a foreign arbitral award (probably due to their 19 Indeed, recent articles have observed the growing lower professional proficiency), some advanced arbitration practice in East Asia and the Pacific experience in the practice of international and report results that show that the number of arbitration enactments should be taken for arbitrations in the region is beginning to surpass reference. That is, the supervision power to that in the high-income OECD countries. See conduct both procedural and substantive Shahla (2009), p. 3. (http://www.allbusiness. examination over domestic and foreign arbitral com/legal/labor-employment-law-alternativeawards is authorized without exception to some dispute-resolution/12384454-1.html). high level courts, which would have judges of a 20 Worldwide Governance Indicators (WGI) of higher caliber, so as to show prudence and to the World Bank Institute aggregate individual guarantee both justice and efficiency.” governance indicators for 212 countries 28 The UK and Ireland designate the High Court, and territories. One of the six dimensions of Canada designates the Superior Court of governance that these indicators measure is the Justice, in France it is President of the Tribunal of rule of law. First Instance. Other “good practice” countries 21 The Rule of Law is defined as “the extent to which are not included in the 2010 IAB country which agents have confidence in and abide by sample follow the same practice: the supervision the rules of society, in particular the quality of and examination power over domestic and contract enforcement, the police, and the courts, foreign arbitral awards is authorized to the as well as the likelihood of crime and violence” Supreme Court in Australia (Article 38, New (WGI), available at http://info.worldbank.org/ South Wales 1984 Commercial Arbitration governance/wgi/pdf/rl.pdf. Act). Swiss law provides that such supervision power shall be exercised in principle by the 22 Note that the final and binding nature of Federal Supreme Court, with the exception that arbitration, which is agreed to by the parties, both parties may agree that this power shall is what distinguishes arbitration from other be exercised by the specific state court where nonbinding forms of alternative dispute resolution, the arbitration tribunal is located, instead of the such as mediation. Federal Supreme Court (Article 191, Private 23 However, article 408 of the Code of Civil International Law Act of Switzerland). Procedure of the Republic of Albania provides for 29 UNCTAD Series on International Investment the impartiality and independence of arbitrators Policies for Development (2008). in domestic arbitrations. 24 The PwC 2008 survey estimates that in 80% of cases, arbitration awards are voluntarily complied with, PwC and Queen Mary University (2008).

Methodology

he indicators presented in Investing Across

23 economies.3 The feasibility and desirability

Borders 2010 (IAB) assess laws that affect

of including topics were evaluated using the

foreign direct investment (FDI) and the efficiency

following criteria:

of administrative processes in 87 economies.

Is the topic already sufficiently covered

The project’s methodology is based on that

by Doing Business or other annual

of the World Bank Group’s Doing Business

benchmarking exercises? Many resources

project.1 The indicators highlight differences

measure the quality and competitiveness

among countries in their regulatory treatment

of business environments worldwide. The

of FDI to identify good practices, facilitate

IAB indicators are designed to comple-

learning opportunities, stimulate reforms, and

ment these resources by focusing on areas

provide cross-country data for research and

of regulation particularly pertinent to FDI.

analysis.

Is the topic affected by public policy, regu-

The indicators are based on a survey of lawyers, other professional service providers (mainly accounting and consulting firms), investment promotion institutions, chambers of commerce, law professors, and other expert

latory and administrative frameworks, or does it mostly depend on other factors— such as natural resource endowments or market size?

Can public authorities take short-term ac-

respondents in the countries covered. Between

tions in the topic area that the IAB indica-

April and December 2009 more than 2,350

tors could track and capture on a regular

respondents were surveyed in 87 countries

basis, or does the topic lend itself more to

(that is, 27 per country, on average).2 The

long-term reforms?

average number of respondents across countries varied. It was higher in countries

Is a regular survey of investment lawyers and other business intermediaries the

with higher levels of income, institutional

appropriate data collection method for

capacity, and greater degree of professional

this topic, or would the topic require a

specialization of the expert respondents.

different type of respondent—such as a foreign investor?

IAB’s thematic focus areas, respondents, and economies Selection of thematic focus areas IAB indicators focus on 4 thematic areas (referred to in this report also as topics) of FDI regulation selected over a 2-year process from a much wider range of investment climate factors, including foreign equity ownership restrictions, investment promotion, approval procedures,

performance

requirements,

access to land, employment of expatriate personnel, restrictions on board members, currency

convertibility

and

repatriation,

protection against expropriation, protection of intellectual property, provision of national treatment principles, investment incentives, and access to international commercial and investment arbitration. During this 2-year process the IAB team consulted academic literature on FDI determinants, investor surveys on barriers to doing business, and FDI specialists comprising IAB’s expert consultative groups. The team also conducted pilot tests in

Investing Across Borders 2010

Is it possible to collect objective and verifiable data on the topic, or is its nature such that it should be evaluated through subjective data based on survey respondents’ perceptions and sentiments?

Can survey questions capture standard, everyday treatment of a typical foreign investor, or is the nature of the topic such that it mostly depends on ad hoc, discretionary decisions and actions by public authorities?

Is there sufficient heterogeneity of performance across economies to warrant developing a global indicator set, or is there a relatively small set of economies whose policies and regulations treat the topic differently from most other economies?

Does IAB have sufficient human and financial resources to measure each topic? Applying

the

above

selection

criteria

narrowed the list of possible topics to the current set of 4 IAB indicator areas. Over time, IAB will consider adding topics to its thematic coverage.

Selection of survey respondents As noted, law firms, other professional services providers (mainly accounting and consulting firms),

investment

promotion

institutions,

chambers of commerce, law professors, and other local experts in the measured economies were the principal respondents to the IAB survey. These individual and organizations had both knowledge of their economies’ legal and regulatory frameworks for FDI and experience advising foreign investors on market entry and operations. Respondents were self-selected based on their interest, availability, and willingness to contribute to IAB on a pro bono basis. About 25% of those invited to complete the surveys elected to participate in the project, on average. IAB identified its potential pool of respondents based primarily on the following sources of information:

International guides identifying leading providers of legal services, including their specialization, in each country. The guides include Chambers and Partners, Martindale, IFLR1000, Helpline Law, HG Law, International Correspondence Lawyers and Financial Experts, The Internet’s Lawyer Directory, and Terra Lex.

Large international law and accounting firms with extensive global networks of offices or local partner groups.

Members of the International Bar Association, country bar associations, chambers of commerce, and other membership organizations.

Professional services providers identified on Web sites of embassies, investment promotion institutions, business chambers, and other local organizations.

Professional services providers recommended by country offices of the World Bank and International Finance Corporation (IFC). Foreign investors were not invited to fill out the surveys. The IAB team had interviewed investors in several countries during the initial pilot tests, and found that they were often not familiar with the specifics of the countries’ legal and regulatory frameworks and that their survey responses were limited to unique sector-specific experiences at one point in

time. In contrast, commercial lawyers—many of whom serve as local counsel to foreign investors—and other professional service providers

Box 7.1: Economies covered by this report

were ideally positioned to complete the IAB survey. They were able to

Sub-Saharan Africa (21 economies): Angola, Burkina Faso,

provide more up-to-date responses based on their experiences advising numerous clients in various sectors. Indeed, the group of respondents providing IAB data in each country had, on average, roughly 180 foreign clients during a 12-month period before data collection. This significantly increases the number of transactional experiences as a basis for IAB data.

Selection of economies IAB covers 87 economies in 7 regions (box 7.1), selected based on the following criteria:

All economies where the IAB indicators were piloted in 2007–08. Population size, to capture the larger countries. Economies in the current and expected future project portfolio of the World Bank Group’s Investment Climate Advisory Services.

Economies that have requested Doing Business reform assistance, and have thus shown interest in using indicators to motivate reforms.

Economies that have demonstrated commitment to business environment improvements and been recognized by Doing Business as leading reformers.

Post-conflict economies, which are one of IFC’s corporate priorities. Middle- and high-income economies that have done particularly well in attracting FDI, and could thus be interesting comparators

Cameroon, Côte d’Ivoire, Ethiopia, Ghana, Kenya, Liberia, Madagascar, Mali, Mauritius, Mozambique, Nigeria, Rwanda, Senegal, Sierra Leone, South Africa, Sudan, Tanzania, Uganda, Zambia.

East Asia and the Pacific (10 economies): Cambodia, China, Indonesia, Malaysia, Papua New Guinea, Philippines, Singapore, Solomon Islands, Thailand, Vietnam.

Eastern Europe and Central Asia (20 economies): Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Georgia, Kazakhstan, Kosovo, Kyrgyz Republic, FYR Macedonia, Moldova, Montenegro, Poland, Romania, Russian Federation, Serbia, Turkey, Ukraine.

Latin America and the Caribbean (14 economies): Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Peru, República Bolivariana de Venezuela.

Middle East and North Africa (5 economies): Arab Republic of Egypt, Morocco, Saudi Arabia, Tunisia, Republic of Yemen.

South Asia (5 economies): Afghanistan, Bangladesh, India, Pakistan, Sri Lanka.

High-income OECD (12 economies): Austria, Canada, Czech Republic, France, Greece, Ireland, Japan, Republic of Korea, Slovak Republic, Spain, United Kingdom, United States.

and case studies for identifying good practices. Given the report’s pilot nature and the project’s resource constraints, not all economies were included in IAB 2010. In future years, IAB plans

Figure 7.1: IAB’s data collection, verification, and analysis process

to expand its coverage of economies. This increase will be driven primarily by demand and resource availability.

Construction and characteristics of the IAB indicators Data collection and analysis

Step 1

Step 2 Step 3 Step 4

The IAB indicators are based on primary data collected mostly by email (and in some cases by telephone or personal interviews) using

Step 5

standardized questionnaires completed in each economy by expert respondents. (Questionaire templates are available on the project’s Web site http://www.investingacrossborders.org.) Figure 7.1 shows

Step 6

the steps involved in data collection, verification, and analysis.

Step 7

To ensure accuracy of collected data, the IAB team engaged in several

Step 8

rounds of interactions by email and telephone with many survey respondents to verify data and explore the reasons for inconsistent

Step 9

responses. This approach was followed until the conflicting responses were reconciled. The IAB team, along with law students from the Georgetown University Law Center, also reviewed countries’ laws and regulations when respondents’ answers to the survey questions

Step 10

Questionnaires emailed to local experts in the measured countries Data collected by email, telephone, or personal interviews Data consolidated and analyzed Selected data verified through desk reviews of available resources, including country laws reviewed by IAB legal experts and through a partnership with the Georgetown University Law Center Multiple rounds of follow-up conducted with questionnaire respondents to validate data Data finalized and IAB indicators developed Data aggregated using various scoring and weighting methodologies to construct indicators Indicators and preliminary results for selected topics reviewed by members of expert consultative groups Data and indicators reviewed by World Bank and IFC country offices and headquarters-based specialists IAB 2010 and indicators cleared by World Bank Group management Public launch of IAB 2010 and online database

Step 11

Methodology

were inconsistent. In addition, the IAB team traveled to 18 of the 87 economies for personal interviews with survey respondents.4 Respondents were asked both to fill out questionnaires and provide references to relevant laws and regulations to facilitate data verification for quality assurance. The surveys captured more than 1,200 data points for each economy. Raw data from the questionnaires were electronically extracted and compared with the original surveys to

Indicator

Indicator type

Investing Across Sectors indicators Foreign equity ownership indexes (0-100)

De jure

Starting a Foreign Business indicators

minimize transcription errors. Every step was documented to ensure

Time (days)

De facto

traceability of data and derivation of the final data set.

Procedures (number)

De facto

Ease of establishment index (0–100)

De jure and de facto

Structure and characteristics of the IAB indicators The IAB indicators comprise measures of the characteristics of laws and regulations (de jure indicators) and their implementation (de facto indicators; table 7.1).

Accessing Industrial Land indicators Strength of lease rights index (0–100)

De jure

Strength of ownership rights index (0–100)

De jure

Access to land information index (0–100)

De jure and de facto

De jure indicators are based on a country’s legal framework. Data for

Availability of land information index (0–100)

De jure and de facto

these indicators were collected through close-ended survey questions

Time to lease private land (days)

De facto

Time to lease public land (days)

De facto

that assessed whether certain provisions and clauses are present in a country’s legal and regulatory frameworks. All de jure indicators are objective and publicly verifiable. Examples of IAB’s legal indicators

Arbitrating Commercial Disputes indicators

include the foreign equity ownership indexes and strength of arbitration

Strength of arbitration laws index (0–100)

De jure

laws index.

Ease of arbitration process index (0–100)

De jure and de facto

Extent of judicial assistance index (0–100)

De jure and de facto

In some cases IAB complemented these de jure indicators with de facto measures of how laws are actually applied in practice. For example, a regulation might stipulate a time limit within which a public agency must complete an administrative requirement, such as registration of a foreign-company. But if this time limit is rarely respected in practice, the IAB indicators recognize this through the de facto indicators. Thus the combination of the de jure and de facto data provide a more comprehensive and realistic measure of investment climates for FDI. The Starting a Foreign Business and Accessing Industrial Land indicators also use specific de facto indicators to measure the amount of time a foreign company needs to establish a subsidiary and access industrial land in the local economy. These indicators were collected following the standard time and motion studies used by Hernando de Soto5 and Doing Business. Each administrative process was broken down into 6

separate steps to ensure more precise estimates. Survey respondents with significant and routine experience in the relevant transactions provided the time estimates. IAB uses the following definitions to measure procedures and time:

Procedure: any interaction between a foreign company (owners, managers, and/or their legal representatives) and other parties (government agencies or departments, public entities or public authorities, local banks).

Time: the time involved in completing each procedure is calculated in calendar days (rather than business days) and based on the median time needed in practice to complete each procedure in the experience of each respondent. All indexes (such as extent of judicial assistance index) are aggregates of individual survey questions. The topic- and index-specific methodology

Table 7.1: Types of indicators used in Investing Across Borders

Investing Across Borders 2010

sections on IAB’s Web site identify the exact questions that fed into each index. All questions were equally weighted. Alternative weighting methods were also explored (including factor and principal component analysis, expert judgment, and others).7 Due to the high correlation of results among the various methods, the equal weights approach was selected because it is most commonly used by other indicator sets, is easily replicable (and so facilitates verification of results), and is most easily understood and communicated to a variety of audiences. The IAB indicators are not aggregated at a topic level and are not ordered to produce a ranking of economies’ performance. IAB will consider introducing rankings of economies in the future years after the project’s methodology has been stabilized. IAB maintains respondents’ anonymity. Although all data are based on respondents’ answers and information provided through the questionnaires, all original data are treated confidentially and the indicators cannot be traced to the responses of individual survey contributors. Regional and global averages of indicator scores in this report are all based on IAB’s current data set for 87 economies. If another source was used, it is clearly identified. The classification of economies by region and income group is based on the World Bank Group’s country classification criteria and conforms to the system used by Doing Business.8

Limitations of the IAB indicators This section presents the main limitations of the IAB project and the topic-specific IAB indicators in 3 areas: substantive, focusing on the content and thematic coverage of the indicators; methodological, concerned with the questionnaire design and data collection; and limits to the implications of the indicators, addressing their potential interpretation, uses, and relationships with various economic and social data. Readers and users of the IAB indicators are urged to keep these limitations in mind when interpreting the data.

Substantive limitations IAB focuses on regulation of FDI, not portfolio investment.9 For example, the Investing Across Sectors indicators consider both greenfield FDI and mergers and acquisitions when assessing sector-specific restrictions on foreign equity ownership. The Starting a Foreign Business and Accessing Industrial Land indicators focus more on greenfield FDI by evaluating the process of establishing a local subsidiary and its options for and ease of accessing industrial land. The IAB indicators do not delve into any of the factors critical to portfolio investment, such as countries’ capital markets, sovereign credit ratings, or currency stability. IAB focuses on national laws and, in some cases, on countries’ ratifications of international conventions governing selected aspects of FDI. The indicators do not measure international investment agreements such as bilateral and regional investment treaties and free trade agreements (box 7.2). The topic-

Box 7.2: Investing Across Borders and international investment agreements International investment agreements have various purposes, including promoting and protecting investments, and liberalizing investment regimes. Many of these agreements cover the same issues, such as scope and definition of foreign investment, admission of investment or pre-establishment, treatment of investment (both national treatment and most favored nation treatment), guarantees and compensation related to expropriation, transfer of funds and repatriation of capital and profits, and dispute settlement—both between states and between investors and states. But individual international investment agreements treat these issues very differently, making it challenging to use a standardized survey to assess how laws and regulations are administered across countries. Bilateral investment treaties and free trade agreements are increasingly complex, raising concerns about implementation challenges. In addition, many of these treaties and agreements have exemption clauses that allow the country which has taken the exemption the freedom to regulate some issues in a different way from the one committed to in the agreement. For example, the United States took such a reservation in the North American Free Trade Agreement (NAFTA) for the national treatment of foreign investors in telecommunications and broadcasting services. IAB does not measure country commitments to international investment agreements for the following reasons: Nearly 3,000 bilateral investment treaties are in place. The United Nations Conference on Trade and Development (UNCTAD) tracks them and, to an extent, analyzes their content. Doing anything beyond what UNCTAD has done—and doing it consistently on a global scale—would be a very demanding undertaking.

The contents of international investment agreements of any one country vary depending on the agreements’ bilateral or regional partners and on when they were negotiated and signed. Methodologically, the appropriate step would be to analyze all of them— which, again, would require significant resources.

IAB aims to give governments tools to affect change unilaterally and in relatively short periods. While governments can change domestic legislation, they have much less ability to alter bilateral investment treaties and free trade agreements, which would require renegotiation. This is particularly the case for developing countries trying to negotiate or renegotiate agreements with high-income countries.

While recognizing that international agreements play an important role in sending a positive signal to foreign investors, the IAB indicators provide a more up-to-date and accurate picture of a country’s FDI policies because they measure the current state of national laws, regulations, and policies, rather than countries’ commitment to liberalizing and promoting investment. The indicators reflect de jure policies on FDI equally applicable to investors from all countries.

specific chapters of this report list the laws that serve as the basis for the indicators.

of FDI by national legislation, which is most

businesses in several areas covered by IAB.

While IAB recognizes that many developing

relevant to a large sample of countries and a

For example, the land rights are often the

countries attract significant FDI in special

large share of global FDI. This methodology

same for all locally incorporated companies

economic zones (SEZs) and that these are in

allows IAB to provide comparable data on

regardless of whtehr they are domestically-

many countries important to FDI competitiveness,

the regulation and efficiency of administrative

or foreign-owned. However, access to land

legal regimes for SEZs, export processing zones

processes for FDI across all economies covered

often presents a greater administrative and

(EPZs), and other areas governed by special

by the project.

bureaucratic hurdle for foreign companies

legal frameworks are excluded from the scope of the project. SEZ development has grown rapidly but is concentrated in relatively few countries and few product areas—sometimes with mixed results. Most FDI ends up outside SEZs. IAB’s goal is to measure the treatment

Some IAB indicators can apply to FDI as well as to domestic investment. While IAB’s objective is to provide measures of FDI regulation, laws in many countries afford equal treatment to foreign and domestic

unfamiliar with local regulations. Thus IAB indicators focus on practical issues commonly identified as obstacles by foreign investors, rather than exclusively measuring areas of regulation that differentiate between domestic and foreign investment.

Methodology

Methodological limitations

involve an element of judgment by expert

IAB is not a survey of perceptions of investors or companies. The IAB indicators are based on legal facts and expert responses collected through a standardized set of questionnaires completed by a small number of FDI specialists in each measured economy.

median value of several responses given under the assumptions of the standardized case.10 Furthermore, the methodology assumes that an investor and its legal counsel have full information on what is required and do not waste time when completing procedures. In

Main limitations of interpreting IAB data IAB’s thematic coverage is limited to 4 areas of FDI regulation. As discussed, the IAB indicators do not provide comprehensive measures of countries’ legal and regulatory frameworks for FDI. The 4 thematic areas were selected from a wider set of possible variables because

IAB data are not based on a statistically

practice, completing a procedure may take

significant sample of respondents in each

longer if the investor and its legal counsel lack

economy. To counterbalance this limitation,

information or are unable to follow up promptly.

with

Alternatively, they may choose to disregard

respondents was used to verify data. But as

some burdensome procedures. For both

in all global studies, the quality of the final

reasons, the times to complete administrative

results is based primarily on the quality of

processes reported in IAB could differ from

the underlying data. As one would expect,

the perceptions of entrepreneurs reported in

IAB data for large middle- and high-income

the World Bank Group’s Enterprise Surveys or

IAB data should not be used as a proxy for

economies tend to be more robust and are

other investor surveys.

government reforms in general. The main

intensive

consultation

process

based on responses from more respondents than those for small low-income economies.

The IAB indicators are not designed to indicate whether treatment of FDI is more

of their policy relevance, relative ease and precision in measurement, reform potential, and other practical considerations. Given the importance of other factors to attracting FDI, it should not be assumed that improvement in the indicator scores will necessarily lead to increased FDI.

purpose of the IAB indicators is to benchmark FDI regulations around the world—and in so doing, facilitate policy dialogue by identifying

The IAB indicators are not necessarily

or less favorable than treatment of domestic

representative of all investment projects.

investment. The IAB indicators across the 4

They aim to measure the typical experience

topics and 87 economies provide a mixed

of a foreign company looking to enter and

picture. For some indicators (such as Arbitrating

operate in a new market. Uniformity and

Commercial Disputes) the legal rules afforded

comparability of data are achieved through

to foreign companies are typically more

detailed assumptions of a case study tailored

favorable than those for domestic businesses.

for each IAB topic. Actual experiences of

For others (such as Starting a Foreign Business)

foreign companies are however likely to vary

there tend to be additional requirements for

The indicators are structured to reward

depending on the nature of their commercial

FDI. Finally, laws often provide the same rules

good regulation and efficient processes.

activities, the size of their investments, their

for foreign and domestic companies. For

Transparent,

relationships with the government and business

example, if a particular economic sector is

laws and regulations are critical to ensuring

community, their negotiating power, the

closed to both domestic and foreign private

that foreign investment results in a win-win

location of their investment, and other factors.

sector participation because it is dominated

situation for investors, host economies, and

by a state-owned monopoly, the Investing

their citizens. A solid, consistently applied

Across Sectors indicators reflect this scenario

legal framework gives investors confidence

as a restriction on FDI even though the

in the security of their property, investments,

restriction also applies to domestic investors.

and rights. The IAB project does not advocate

Accordingly, the indicators are not structured to

for reducing all regulatory barriers, but

clearly measure derogations from the national

hopes to improve understanding of how to

treatment principle. As such, the indicators do

maximize the development benefits of FDI

not present exact measures of areas where

through appropriate and effective regulatory

laws and regulations discriminate against

frameworks.

IAB data on the efficiency of administrative processes are specific to the country’s largest business city (examples are indicators on the number of days to start a foreign business or to lease industrial land). The case study underlying IAB data assumes that a foreign company will seek to incorporate and operate in a country’s center of commercial activity, thereby interacting with public authorities in that city. Thus IAB data are not necessarily representative of common practices in other cities in each economy, particularly in large or federal economies. IAB measures of time, captured in particular through some of the de facto indicators,

respondents. The reported time represents the

Investing Across Borders 2010

foreign or domestic companies. They evaluate legal and regulatory frameworks from the perspective of foreign investors and include all restrictions that affect foreign investors, even if those restrictions also affect domestic businesses.

good practices, track reforms, facilitate sharing of reform experiences, and enable research and analysis on the links between reforms in measured areas and desired outcomes. Any reforms that countries wish to undertake should be considered in a broader context of priorities.

predictable,

and

effective

The following section presents limitations of each of the 4 specific topics covered by IAB. These limitations are additional to the general project-wide limitations presented above.

Limitations specific to the indicator topic area Investing Across Sectors The absence of foreign ownership restrictions as measured by the Investing Across Sectors indicators is an important but insufficient condition for attracting FDI. Aside from openness

foreign

ownership,

other

determinants of FDI include market size, infrastructure quality, political stability, and economic growth potential. Restrictions on foreign ownership limit and in some cases prohibit FDI in certain sectors. But abolishing foreign ownership restrictions and having a completely open economy do not guarantee

legal restrictions on FDI (de jure measures).

reasons include a sector’s underlying market

This is in contrast to other IAB indicators,

structure and the discretionary authority of

which also measure how laws are applied

regulatory bodies granting sector-specific

in practice (de facto measures). As a result,

licenses (especially in service sectors).

countries may score higher on the Investing Across Sectors indicators than they would if their actual openness to foreign presence in various sectors were measured by the de facto constraints or by actual FDI. Despite the project’s efforts, capturing actual practices in all the measured sectors proved infeasible with the existing survey instrument given the relatively small sample of respondents in each country and the wide variety of reasons that could prevent FDI in a particular market. These

Even in the realm of de jure restrictions, limits on foreign equity are just one among many possible legal and regulatory impediments to FDI. Binding constraints on market access might also include limits on the number of operators allowed, types of legal entities, and minimum values of transactions or assets. Some of this information was collected through the Investing Across Sectors questionnaires and is available on IAB Web site (http:// investingacrossborders.org). But given that

success in attracting more FDI. The indicators cover a large share of economic sectors but are not all-encompassing. Coverage of the primary and manufacturing sectors is relatively limited given that past studies have shown—and this report confirms—that most countries do not restrict foreign ownership in these sectors. The coverage of the service sectors, though more extensive than in past studies, is also not exhaustive. For example, the indicators do not include certain public utilities (such as water or natural gas distribution), professional services (such as legal, accounting, and consulting services), and social services (such as education). These and other service sectors were not included in the survey questionnaire for one or more of the following reasons: FDI plays a small role in the sector, FDI restrictions ( if present) often do not take the form of equity limits, views in the development literature diverge on the appropriate role of foreign capital in the sector, and methodological constraints limited the length of the questionnaire and potential quality of responses. Finally, sectors where countries may have legitimate security, cultural, or religious reasons for prohibiting FDI are omitted from the indicators’ coverage. These include weapons, nuclear power, toxic waste, and manufacturing of tobacco products and alcoholic beverages. Because one of the underlying principles of IAB is to collect objective, verifiable, quantifiable information, the Investing Across Sectors indicators are currently limited to analyzing

Box 7.3: Investing Across Borders and commitments under the General Agreement on Trade in Services Unlike trade policy, cross-country comparisons of foreign investment regimes have received insufficient analysis.11 Early attempts to quantify national FDI restrictions have been limited to simply counting the number of policies that undermine FDI, without weighing the relative importance of the individual policies.12 Recognizing that service sectors are more restricted than primary and manufacturing sectors, other attempts at a numeric presentation of FDI restrictions have mainly relied on the General Agreement on Trade in Services.13 Most of the IAB Investing Across Sectors indicators deal with FDI in services. There is no international agreement on standardized reporting of policies for FDI in services, with the partial exception of schedules for the General Agreement on Trade in Services (GATS) governed by the World Trade Organization (WTO). But GATS schedules are a weak guide to FDI policies in most countries because they generally underestimate how much countries have opened up services to FDI. GATS commitments are made in the form of “positive” lists representing official commitments to open markets, in contrast to “negative” lists of exceptions to liberalization. Under GATS, the absence of a positive commitment does not necessarily imply a restriction. To retain policy flexibility, a country may simply have chosen not to list the sector in its schedule. Alternatively, if the sector is restricted, GATS may be silent on the nature of the restriction—creating ambiguity about the country’s actual policies. Furthermore, current GATS schedules date from about 2000 and may not capture more recent country-level changes. Thus country policies and practices are typically more open than what countries commit to in international agreements like GATS. For example, India has committed to allowing 51% foreign equity ownership in software, construction, and tourism under its GATS commitments. But in national law and practice, it permits 100%. In telecommunications India’s GATS commitment is 25%, but in national law and practice it is 74% or more. Most tellingly, while India has not even listed commitments in transport, the sector is not closed. Indeed, India allows 100% foreign ownership in road and maritime transport. The Investing Across Sectors indicators provide an up-to-date and accurate picture of a country’s equity restrictions because they measure the present state of the laws and policies, rather than the country’s commitment to liberalize, now or at some point in the future. The indicators reflect de jure policies on FDI applicable to all countries in a nondiscriminatory manner.

Methodology

The indicators also do not cover the following

used in the construction of the indicators. The

types of licenses:

using land by individuals—domestic or

indicators also do not measure the ability

Sector-specific licenses (such as explora-

foreign.

of foreign companies to bid on concession contracts.

tion or mining permits).

Permits for international and domestic

The indicators focus on restrictions captured in countries’ statutes, and not on commitments to open sectors to FDI captured in international investment agreements (such as bilateral

The ease of acquiring land for specialized purposes such as developing residential

(including municipal) health, food safety,

real estate, renting office space, and buy-

and product and labor standards and

ing or leasing land in special economic

regulations.

Work and residency permits for foreign

zones or industrial parks.

The amount of land available for invest-

investment treaties or free trade agreements)

employees, though these play an impor-

ment in or near the country’s largest

or WTO commitments (box 7.3).

tant role in the start-up a foreign-owned

business city. Many large urban centers

subsidiary.

have limited industrial land available for

Starting a Foreign Business The process for establishing a foreign-owned subsidiary may differ by city, province, or

region

within

countries—especially

large or federal countries. The Starting a Foreign Business indicators assume that the

Government reviews of foreign acquisitions in sensitive and strategic sectors. Such reviews are often conducted for reasons of national, economic, and trademark security and protection.

investment, but this is not measured by the indicators.

Acquisition of land along a country’s borders or coastlines.

The ease of developing land, including factors such as land privatization, land use

establishment process occurs in the country’s

Accessing Industrial Land

largest business city and do not explore

The process for accessing industrial land

possible variations in other parts of the

may differ by city, province, or region

country.

nections, and sector-specific regulations.

within countries—especially large or federal

The quality and effectiveness of comple-

Because the case study stipulates that a subsidiary will be established as a limited liability companies (LLC), the Starting a Foreign Business indicators do not measure the number of procedures required to establish

countries. The indicators assume that the process of leasing land occurs in the country’s largest business city and they do not explore possible variations in other parts of the country.

other type of a business (such as corporation

The Accessing Industrial Land indicators do

or partnership). The indicators also do not

not cover:

consider other types of foreign investment

The ease of acquiring agricultural land by

projects (such as joint ventures, licensing agreements, or establishment of branch offices), which are often treated differently— both by law and in practice—than foreign subsidiaries.

subsidiary will be operating a manufacturing facility and engage in international trade (importing

foreign individuals and companies. Many countries there may have additional restrictions for foreign investment in agricultural land (as in the European Union and the United States). Due to the sensitive nature

The case study also stipulates that the foreign

some

production

inputs

and

of the topic and its potential negative consequences for communal land holders in rural areas, it was deliberately excluded.

The time and procedural steps involved

exporting some manufactured goods). Thus

in purchasing private or public land,

the indicators consider obtaining a trade

because purchasing land is not possible in

license a required procedure for the start-up

some of the economies surveyed.

The amount of land (public or private)

process. Because the foreign company is assumed not to be applying for special benefits or privileges from host countries (such as extraordinary tax holidays, breaks, or exemptions; or customs duty

exemptions)

apart

from

automatic

investment incentives, procedures that are only required to obtain special benefits are not considered essential to the start-up process.

The ease of acquiring, securing, and

this information is incomplete, it was not

Investing Across Borders 2010

registered in land or property registration systems, and the quality of this information.

Aspects of the functionality of land registries and cadastres.

The proportion of land held privately rather than publicly.

planning, location permits, construction permits, rezoning applications, utility con-

mentary financial and legal institutions (such as credit bureaus and courts).

Land and property tax regimes for foreign companies and investors.

The cost of acquiring land (through lease or purchase).

Environmental and social protections for host countries, beyond what is measured by the Ease of leasing land indicators. The Accessing Industrial Land indicators do not encourage governments to promote efficient land transactions at the cost of environmental and social protections. Despite an explicit effort to strike the proper balance between the benefits and costs of regulation in the indicators, major limitations remain. As noted, the indicators do not highlight issues related to environmental and social protections for host countries, though the IAB survey did examine these in the context of leasing land. In most countries environmental and social impact assessments are not conducted when a foreign company leases or buys land, but instead when it intends to construct on it or to begin operations in a sector sensitive to environmental and social concerns. When interpreting and using the Accessing Industrial Land indicators, it should be kept in mind that they focus primarily on laws and

regulations governing foreign companies’

tion awards by the International Centre for

access to industrial land, and less on legal

Settlement of Investment Disputes (ICSID).

protections for host countries’ citizens and environments. The indicators (like many other data sets) should not be considered in isolation, but in conjunction with other indicators and reports—such as the Land Governance Assessment Framework (LGAF) —that reflect 14

a country’s other needs, circumstances, and socioeconomic development.

methodology

for

the

Levels of awareness and acceptance of arbitration practices by countries’ legal and business communities.

Levels of training of countries’ arbitration practitioners and judges.

Effectiveness of arbitral institutions. Extent to which arbitration is preferred over other dispute resolution tools in each

Arbitrating Commercial Disputes The

Arbitrating

country.

Effectiveness of commercial litigation

Commercial Disputes indicators is primarily

(which is already measured by the World

limited to analyzing objective and verifiable

Bank Group’s Doing Business enforcing

data, such as the legal framework and most

contracts indicator).16

common practices in each country. The survey used a methodology consisting mainly of yes or no questions about whether certain laws or regulations exist in the country. It contained few perception-based questions. Thus coverage of actual practice is limited, given the survey methodology and the nature of arbitration, which is private and confidential. There is no such thing as a “one size fits all”

Due to these and other limitations, the IAB indicators are only partial measures of the topic areas they cover. They are limited in scope and explanatory power relative to actual policies and business realities. The specific contexts of each economy must be considered when interpreting the indicators and their implications for that country’s policies and investment climate.

arbitration regime. But by asking standardized questions in the survey, the IAB project aims to identify good practices that can help countries benchmark the strength of their arbitration regimes. Many countries that have recently adopted arbitration statutes (such as Afghanistan and the

Detailed information about the methodology, case study assumptions, and construction for the individual indicators associated with the 4 topics is available online at http://www.investingacrossborders.org.

Solomon Islands) have little or no experience

arbitration is a well-established mechanism for resolving commercial disputes. Countries with little or no experience are excluded from some of the analysis on court assistance and enforcement. The indicators do not cover:

Evaluation of arbitration clauses in bilateral investment treaties, investment chapters of free trade agreements, investment treaty arbitrations, and enforcement of arbitra-

5 de Soto (1989). 6 Ibid. 7 For example, the correlation coefficient of the end results utilizing various scoring, weighting, and aggregation methodologies for the Investing Across Sectors data was 0.98. Given the high correlation coefficient, simple weights were adopted for the reasons explained in the text. 8 See: http://www.worldbank.org/data/ countryclass. Investing Across Borders 2010 reports 2008 gross national income per capita as published in the World Bank’s World Development Indicators 2009. Income is calculated using the Atlas method (current $). For population data, Investing Across Borders 2010 uses mid-year 2008 population statistics as published in World Development Indicators 2009. 9 Portfolio investment, in contrast to foreign direct investment, represents passive holdings of securities such as foreign stocks, bonds, or other financial assets and does not convey significant control over the management or operations of the foreign firm. 10 The de facto indicators do not capture the degree of variation an investor may experience when completing the procedures. The project thus investigates whether or not a measure of the degree of variation of the individual responses should be included so as to compare consistency of treatment across economies. For example, if in one country it takes a median of 90 days to establish a foreign-owned company with a standard deviation of 5, while another takes only 60 days with a standard deviation of 45, an investor is likely to want to ensure that the burden of the regulation takes 2 months rather than somewhere between 2 weeks and 4 months. 11 Christiansen (2004).

with international arbitration. This makes it hard to compare them with countries where

Afghanistan, Angola, Azerbaijan, Bangladesh, Burkina Faso, Cambodia, Côte d’Ivoire, Haiti, Kenya, Liberia, Mali, Montenegro, Papua New Guinea, Rwanda, Senegal, the Solomon Islands, South Africa, and Sudan.

Endnotes 1 The methodology of the Doing Business project can be viewed online at http://www. doingbusiness.org. 2 More detailed statistics on the number of respondents are available on IAB’s Web site. 3 The group of pilot countries comprised Argentina, Austria, Bangladesh, Cameroon, Canada, Chile, China, Colombia, Egypt, Ethiopia, Ghana, Madagascar, Mozambique, Nicaragua, Nigeria, Peru, Russian Federation, Serbia, Singapore, the United States, República Bolivariana de Venezuela, Vietnam, and the Republic of Yemen. 4 The group of countries were data was collected through face-to-face interviews comprised

12 Hoekman (1997); Sauvé, Pierre and Karsten Steinfatt, “Assessing the Scope for Further Investment Regime Liberalisation: An Analysis Based on Revealed Liberalisation Preferences,” OECD, unpublished. 13 Pacific Economic (1995).

Cooperation

Council

14 Burns and Deininger (2009). 15 Countries have different numbers of bilateral investment treaties, and even the same treaty can have differences across countries in their substantive and dispute resolution clauses. Thus the IAB methodology is not suitable to measure the quality of countries’ frameworks for bilateral investment treaties. 16 World Bank, Doing Business, Contracts (Washington, D.C.

Enforcing

Methodology

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Investing Across Borders 2010

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Investing Across Borders 2010

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Profiles of Economies

Afghanistan IAB global average (87 countries)

IAB regional average (5 countries)

Country score

Indicators

South Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 88.0 92.0 Agriculture and forestry 100.0 90.0 95.9 Light manufacturing 100.0 96.3 96.6 Telecommunications 100.0 94.8 88.0 Electricity 100.0 94.3 87.6 Banking 100.0 87.2 91.0 Insurance 100.0 75.4 91.2 Transportation 100.0 79.8 78.5 Media 100.0 68.0 68.0 Sector group 1 (constr., tourism, retail) 100.0 96.7 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Afghanistan is among the countries with least overt statutory restrictions on foreign ownership as measured by the Investing Across Sectors indicators. Among the 33 industry sectors covered by the indicators no such restrictions were identified. The country is an interesting example of the fact that the absence of foreign equity ownership restrictions across sectors is a necessary, but not sufficient condition for attracting FDI. Several determinants are at play simultaneously, including market size, quality of infrastructure, political stability, economic growth potential, with openness to foreign equity ownership being only one among those factors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

68.4

62.5

64.5

73.3

87.5

82.1

N/A

93.8

92.2

9.1

20.1

41.3

0.0

59.7

70.6

218 301

99 205

61 140

68.1

86.4

85.2

0.0

55.0

70.6

0.0

36.4

57.9

It takes 4 procedures and 7 days to start a foreign-owned limited liability company (LLC) in Afghanistan (Kabul). This is among the shortest processes in South Asia and the IAB countries globally. A foreign company establishing a subsidiary in Afghanistan will need to authenticate the parent companyâ&#x20AC;&#x2122;s documents abroad. Investments of more than $3,000,000 must go through the Afghanistan Investment Support Agency (AISA). AISA issues the business license and the tax identification number. Companies in Afghanistan are free to open and maintain a bank account in foreign currency. There is no minimum capital requirement for foreign or domestic companies.

Accessing Industrial Land Strength of lease rights index (0 = min, 100 = max) Strength of ownership rights index (0 = min, 100 = max) Access to land information index (0 = min, 100 = max) Availability of land information index (0 = min, 100 = max) Time to lease private land (days) Time to lease public land (days)

The process of acquiring land in Afghanistan is unpredictable. Foreign companies seeking to access land have the option to lease privately or publicly held land. It is difficult to determine from which authority one must seek approval to lease public land. Depending on the interests involved, one might need to seek approval from the president, minister, or head of a department. All land transactions must be registered with the courts, but only a fraction of transactions are in fact registered. This creates insecurity regarding the status of land. There are, however, no legal restrictions on the lesseeâ&#x20AC;&#x2122;s right to subdivide, sublease, and mortgage the leased land. This is determined by the lease contract between the relevant parties. In Kabul, there are no formal institutions that provide coherent land-related information. The information, if it exists, is scattered among various municipal offices, ministries, and courts.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Alternative dispute resolution (ADR) in Afghanistan is governed by the Afghan Commercial Arbitration Law (2007) and the Commercial Mediation Law (2007), which invalidate the Commercial Mediation Law of 1995. According to both laws, the Ministry of Commerce and Industry (MOCI) may propose regulations and enact and approve rules and procedures for better implementation of the laws. It is unclear, however, if any such rules and procedures have been enacted. Currently there is no active ADR institution in Afghanistan and ADR is not a common method of dispute resolution. Legal counsel in Afghanistan were therefore unable to provide detailed answers to survey questions on the commercial arbitration regime. The country has ratified the New York Convention and the ICSID Convention.

For more information on this country, please go to http://www.investingacrossborders.org

Investing Across Borders 2010

Albania IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 79.6 84.0 78.5 Media 70.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

The Albanian legal system grants foreign and domestic investors equal rights of ownership of local companies, following the principle of â&#x20AC;&#x153;national treatment.â&#x20AC;? Of the 33 sectors covered by the Investing Across Sectors indicators, 30 are fully open to foreign equity ownership. The only exceptions are the domestic and international air transportation and the television broadcasting sectors. Foreign ownership of airline companies is limited to a maximum share of 49% for both domestic and international air transportation. These equity restrictions, however, apply only to investors from countries outside of the Common European Aviation Zone. The Law on Public and Private Radio and Television in the Republic of Albania (No. 8410/1998) stipulates that no natural person or legal entity, foreign or Albanian, may own more than 40% of the share capital of a television company.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

84.2

76.8

64.5

80.7

82.9

82.1

100.0

97.6

92.2

47.4

50.3

41.3

85.0

78.9

70.6

36 129

43 133

61 140

84.0

82.5

85.2

40.7

69.7

70.6

68.5

64.4

57.9

It takes 7 procedures and 7 days to establish a foreign-owned limited liability company (LLC) in Albania (Tirana). This is faster than both the IAB regional average for Eastern Europe and Central Asia and the IAB global average. A foreign company is not required to seek investment approval, although, if it wants to engage in international trade, it must register with the customs system in order to import goods. Registration with the National Registration Center (NRC) takes only a day and the required documents are available online. Entrepreneurs can complete company, tax, social insurance, health insurance, and labor directorate registrations using a single application procedure with the NRC. Any company in Albania may freely open and maintain bank accounts in foreign currency. Usually, Albanian banks allow accounts in ALL, Euros, and $. Specific banks may also permit other currencies (based on market request). The minimum capital requirement for domestic and foreign LLCs has been significantly reduced, by Law No. 9901, to ALL 100 (~$1).

In Albania, it is possible to lease or own both privately and publicly held land. The process of leasing public land, though legally possible, is difficult in practice. Public land can only be leased through a competitive bid and requires several administrative procedures. Lease contracts are limited to 99 years for agricultural land and 30 years for other land. Only lease agreements for a period of more than 9 years require registration with the relevant office. The lease contract can offer the lessee the right to sublease and/or subdivide the land as well as the right to mortgage the land or use it as collateral. There are no restrictions on the amount of land that may be leased. Key land-related challenges that investors are likely to face are the result of unresolved conflicting claims rendering title documents insecure. One should exercise due diligence when seeking to acquire land in Tirana.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

In 2003, Albania enacted legislation on mediation based on the UNCITRAL Model. The Albanian Civil Procedure Code (1996) has a short section on domestic arbitration and notes that international arbitration will be regulated by a special law that has not yet been adopted. The section on domestic arbitration applies only to arbitration proceedings conducted in Albania, in which all the parties are Albanian residents. The law allows for all property claims or other rights related to property to be resolved through arbitration. The arbitration agreement must be concluded in writing. An agreement reached through email communications between the parties is not considered valid. Based on the definition of domestic arbitration in the Code of Civil Procedure, it is unclear whether 2 Albanian entities residing in Albania may agree to arbitrate disputes outside of Albania. Local courts might refuse to enforce an award resulting from such arbitration. It is also unclear whether the provisions for domestic arbitration apply in cases of international arbitration taking place in Albania. The law does not specify which court has jurisdiction to oversee arbitration proceedings in cases of enforcing an arbitration agreement, assisting the arbitrators with orders for provisional measures, and taking evidence. Arbitration proceedings in Albania must be conducted in Albanian. Only lawyers licensed to practice in Albania may represent parties in domestic arbitration. The district court of first instance has jurisdiction to enforce awards made in Albania, which can take 14 weeks on average for domestic awards and 15 weeks for foreign awards from filing an application to a writ of execution attaching assets (assuming there is no appeal).

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

Angola IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 74.5 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 82.5 98.6 96.6 Telecommunications 75.0 84.1 88.0 Electricity 100.0 90.5 87.6 Banking 10.0 84.7 91.0 Insurance 50.0 87.3 91.2 Transportation 80.0 86.6 78.5 Media 30.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

With statutory ownership restrictions on 9 of the 33 sectors covered by the Investing Across Sectors indicators, Angola limits foreign equity participation in its economy more so than most countries in Sub-Saharan Africa included in the report. Aside from the oil and gas sectors, where foreign ownership is limited to 49%, restrictions in Angola are found primarily in the service sectors. In particular, private capital participation (domestic or foreign) in the fixed-line telecommunications infrastructure sector is prohibited. In the financial services sectors, foreign investment in insurance companies is limited to 50% and in banks to 10%. Foreign capital participation in excess of these limits is possible with the approval of the Council of Ministers or the central bank. In the publishing, TV broadcasting, and newspaper media sectors, foreign ownership is limited to a 30% share.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

263

39.5

51.5

64.5

87.9

76.6

82.1

75.0

77.3

92.2

36.8

33.9

41.3

60.0

58.5

70.6

40 129

72 151

61 140

74.9

82.4

85.2

57.3

73.8

70.6

59.9

55.9

57.9

It takes 12 procedures and 263 days to establish a foreign-owned limited liability company (LLC) in Luanda, Angola. This is longer than the IAB regional and global averages. LLCs (Sociedades por Quota) must have at least 2 shareholders. The 4 additional procedures required exclusively of foreign companies add 195 days to the establishment process. A foreign company must translate the parent companyâ&#x20AC;&#x2122;s documents into Portuguese and certify them in the country of origin. In addition, a foreign company must obtain an investment project approval from the National Agency for Private Investment (ANIP) and the Council of Ministers (Conselho de Ministros), which takes on average 180 days. If the project has an initial capital investment of less than $5,000,000, it is submitted to ANIP for simplified approval proceedings. Foreign investments under $100,000 do not require ANIP approval. The foreign company, if it wants to engage in international trade, must also obtain a trade license from the Ministry of Commerce, which takes on average 14 days. A certificate of capital importation is also required and is issued after the investment project is approved by the Angolan National Bank (Banco Nacional de Angolaâ&#x20AC;&#x201D;BNA). Foreign companies are legally required to contract local accountants and auditors as well as legal counsel. Foreign companies must open a foreign currency bank account in a local bank domiciled in Angola. The minimum capital requirement for establishing an LLC in Angola is AOA 85,719 (~$1,000).

According to Article 12 of the Constitutional Law of Angola, all lands are originally property of the Angolan state. Private land is not common, although it does exist. The state grants lease rights to investors, but the state usually retains ownership of the land. Only domestic companies can purchase publicly owned land. While it is legally possible for a company to own or lease private land, the more common option to lease public land. The transfer of land to another party is possible, but depends on authorization from the relevant official. There are time limits and certain conditions that limit the possibility of transfer. For example, the holder must use leased land for a minimum of 5 years. The intention is to thwart land speculation. There are certain limits on the amount of land that may be leased. For land greater than 2 hectares in urban areas and 5 hectares in rural ones, a ministerial grant may be required.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Arbitration Law No. 16/03 (2003) governs domestic and international arbitrations in Angola. It is based on the UNCITRAL Model Law. Domestic arbitrations are extremely rare, however, and it is therefore difficult to assess how effectively the law is implemented. Under the law, private commercial disputes can be arbitrated. Administrative contracts involving the state acting in its public capacity, however, are subject to greater restrictions. Parties can appoint arbitrators of any nationality or professional qualifications, although only lawyers registered in Angola may represent parties in arbitration proceedings taking place in Luanda. Parties may choose the language of international arbitration proceedings, but domestic arbitrations must be conducted in Portuguese. There are no arbitral institutions in Luanda. This means that parties may appoint a foreign arbitral institution. The law provides for courts to assist arbitral tribunals, but it is difficult to assess the effectiveness of such assistance, given the lack of practice. Similarly, it is difficult to estimate the time needed to enforce arbitration awards, due to the lack of practice for the enforcement of arbitration awards rendered in Luanda or in a foreign country. Based on the time limits set out in the law, it should take 10 weeks to enforce an award rendered in Angola from filing an application to a writ of execution attaching assets (assuming there is no appeal).

For more information on this country, please go to http://www.investingacrossborders.org

Investing Across Borders 2010

Argentina IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 100.0 94.5 88.0 Electricity 100.0 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 79.6 80.8 78.5 Media 30.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 96.4 96.0

Of the 33 sectors covered by the Investing Across Sectors indicators, 29 are fully open to foreign equity ownership in Argentina. The only exceptions are the air transportation and media industries. According to the Aeronautic Code (Law No. 17.285), foreign capital participation in companies providing commercial passengers transportation, on both domestic and international routes, is limited to 49%. In addition, the company must be incorporated according to Argentine laws and must be domiciled in Buenos Aires. For the media sectors, Law No. 25.750 establishes a limit on foreign ownership of newspapers, journals, magazines, and publishing companies, as well as on television and radio companies. According to Article 2 of the law, foreign companies are allowed to hold up to a 30% stake in the capital and voting rights of such companies.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

65.0

62.8

64.5

79.3

78.2

82.1

100.0

98.2

92.2

44.4

40.4

41.3

85.0

73.0

70.6

48 112

62 156

61 140

63.5

87.5

85.2

72.2

66.8

70.6

55.1

51.7

57.9

It takes 18 procedures and 50 days to establish a foreign-owned limited liability company (LLC) that wants to engage in international trade, in Argentina (Buenos Aires). This is longer than the IAB global average, but shorter than the IAB regional average for Latin America and the Caribbean. Full foreign equity ownership is not restricted. However, Argentine law requires at least 2 equity holders, with the minority equity holder maintaining at least a 5% interest. The Argentine Constitution and Foreign Investment Act stipulate that foreigners may invest in Argentina without prior approval and under the same conditions as local investors. In addition to the procedures required of a domestic company, a foreign company establishing itself in Argentina must legalize the parent companyâ&#x20AC;&#x2122;s documents, register the incoming foreign capital with the Central Bank, and obtain a trading license. Compliance with Central Bank regulations facilitates the repatriation of funds, according to Argentinaâ&#x20AC;&#x2122;s Foreign Exchange Market regulation. Companies in Argentina may open only a savings account in foreign currency. There is a minimum capital requirement of ARS 12,000 (~$3,100), 25% of which must be paid in at incorporation.

Foreign companies seeking to access land in Argentina have the option to lease or buy land from private or public owners. Publicly owned land is always sold through public auction. Registration of leases is not mandatory for either privately or publicly owned land. There are, however, certain exceptions for the lease of agricultural land. There is no statutory maximum duration for the lease of land. The steps involved in leasing public land are similar to those for leasing land from a private owner, but the lease of public land requires governmental approval by provincial decree. The time that it takes to obtain such a decree varies. Although an environmental impact assessment is not legally required to lease land, such an assessment is required to obtain a license to operate an industrial plant. Hence, it is usually advisable to perform an environmental due diligence prior to the lease or purchase of land destined to hold industrial facilities.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Argentina does not have a specific law governing arbitration, but it has adopted a mediation law (Law No. 24.573/1995), which makes mediation mandatory prior to litigation. Some arbitration provisions are scattered throughout the Civil Code, the National Code of Civil and Commercial Procedure, the Commercial Code, and 3 other laws. None of these laws contains definitions of domestic or international arbitration; nor do they regulate the severability of the arbitration agreement from the main contract nor require the confidentiality of arbitration or the impartiality of arbitrators. The Code of Civil and Commercial Procedure states that when parties have not agreed on the applicable procedural rules, the arbitration must be conducted under the same procedural rules as those that govern cases litigated in court. The following methods of concluding an arbitration agreement are not binding under Argentine law: electronic communication, fax, oral agreement, and conduct on the part of one party. Generally, all commercial matters are arbitrable. There are no legal restrictions on the identity and professional qualifications of arbitrators. Parties must be represented in arbitration proceedings in Argentina by attorneys who are licensed to practice locally. The grounds for annulment of arbitration awards are limited to substantial procedural violations, an ultra petita award (award outside the scope of the arbitration agreement), an award rendered after the agreed-upon time limit, and a public order violation that is not yet settled by jurisprudence when related to the merits of the award. On average, it takes around 21 weeks to enforce an arbitration award rendered in Argentina, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 18 weeks to enforce a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

Armenia IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 74.5 96.2 92.0 Agriculture and forestry 50.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 55.6 84.0 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

In Armenia, overt statutory ownership restrictions on foreign capital, as measured by the Investing Across Sectors indicators, exist in a number of key sectors of the economy. Foreign ownership of air transportation companies (domestic and international), for example, is limited to a maximum of 49%. In addition to these restrictions, which can be found in many countries in Eastern Europe and Central Asia, Armenian laws also limit foreign ownership in the airport operation and railway transportation sectors to 40%. These industries, as well as the electricity transmission sector, are, furthermore, characterized by monopolistic market structures, further impeding foreign investment. Restrictions also exist in selected primary sectors such as the forestry industry, which is closed to foreign investment, and in the oil and gas sector, where foreign capital participation is limited to a maximum of 49%.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

78.9

76.8

64.5

92.8

82.9

82.1

100.0

97.6

92.2

73.7

50.3

41.3

95.0

78.9

70.6

10 57

43 133

61 140

89.9

82.5

85.2

82.3

69.7

70.6

27.3

64.4

57.9

It takes 8 procedures and 18 days to establish a foreign-owned limited liability company (LLC) in Armenia (Yerevan), a process in line with the regional average for IAB countries in Eastern Europe and Central Asia. A foreign company is not required to seek an investment approval, although, if it wants to engage in international trade, it must register with the customs authority in order to import goods; this can take 2 days. Registration with the State Registrar must be either approved or denied within 5 working days. According to the Law on State Registry of Enterprises, a registration may be refused only if the legal entityâ&#x20AC;&#x2122;s founding documents are either incomplete or inaccurate. There are no electronic services for company registration. Companies in Armenia are free to open and maintain bank accounts in foreign currency and there is no minimum capital requirement for foreign or domestic companies.

Foreign companies seeking to access land in Armenia have the option to lease or buy land from both private and public owners. The process of leasing private land is streamlined and extremely fast compared to the regional or global average. Leasing of publicly held land takes place through a public tender process, after which the successful party enters into direct negotiations with the relevant public body. Land can be leased for up to 99 years and the lessee has the right to subdivide, sublease, or mortgage the leased land. There are no restrictions on the amount of land that may be leased. Yerevan, Armeniaâ&#x20AC;&#x2122;s capital, has both a land registry and a cadastre located in the same agency, and they are linked and coordinated to share data. There is, however, no land information system (LIS) or geographic information system (GIS) in place that centralizes relevant information at a single point of access.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Armenia recently adopted a Law on Commercial Arbitration (2006), which is based on the UNCITRAL Model Law but applies to both domestic and international arbitration. The Armenian law stipulates that local courts must enforce arbitration awards that are made in Armenia and in the states that are signatories to the 1958 New York Convention, on the basis of reciprocity (Art. 35). All commercial disputes are arbitrable, including banking, investment, financing and insurance disputes, exploitation, and concession agreements. The law, however, does not cover intra-company and patent or trademark disputes. Parties are free to appoint arbitrators of any nationality or professional qualifications, and may choose foreign lawyers to represent them in proceedings in Armenia. The law sets a default rule of confidentiality of the proceedings. It takes less than 30 days to obtain an arbitration award in the Arbitration Court of the Armenian Chamber of Commerce. The arbitration award must be confirmed by an Armenian court, which issues a writ of execution (Art. 35). The confirmation hearings are conducted according to the regular rules of civil procedure and scheduled like any other court case, depending on the caseload of the particular court. On average, it takes around 58 weeks to enforce an arbitration award rendered in Armenia, from filing an application to a writ of execution attaching assets (assuming there is no appeal). Arbitration is still new in Armenia and practice is scarce.

For more information on this country, please go to http://www.investingacrossborders.org

Investing Across Borders 2010

Austria IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 100.0 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 100.0 93.8 96.6 Telecommunications 100.0 89.9 88.0 Electricity 70.9 88.0 87.6 Banking 100.0 97.1 91.0 Insurance 100.0 100.0 91.2 Transportation 79.6 69.2 78.5 Media 74.5 73.3 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 91.7 96.0

The Austrian legal system does not have any general restrictions on foreign ownership of local companies. Overall, the country offers a welcoming environment to foreign investors, with foreign equity ownership restrictions in only a limited number of the sectors covered by the Investing Across Sectors indicators. As in all other European Union member countries, foreign ownership in the air transportation sector is limited to 49% for investors from outside of the European Economic Area (EEA). The Act on Ownership in Austrian Electricity Industry stipulates that a minimum of 50% (in some cases 51%) of the shares (and, in particular, of the voting rights) in former government-owned companies in the Austrian electricity industry (generation, transmission, and distribution) must be held by the Austrian republic, states, communities, or publicly owned enterprises. Foreign equity ownership in newly established companies is not limited. Foreign capital participation in Austrian television broadcasting companies is limited to a maximum of 49% by the Austrian Private Television Act.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

73.7

77.8

64.5

85.7

92.2

82.1

100.0

92.2

42.1

52.5

41.3

80.0

84.2

70.6

33 79

50 88

61 140

95.4

94.2

85.2

83.7

83.3

70.6

83.0

77.6

57.9

The process of establishing a foreign-owned subsidiary in Austria (Vienna) is slower than the IAB average for high-income OECD countries, but faster than the IAB global average. The 2 additional procedures required exclusively of foreign companies add 2 days to the process. A foreign enterprise must notarize the documents of the parent company abroad. In addition, foreign direct investments (FDI) must be reported to the Austrian National Bank for statistical purposes. This notification takes only 1 day. No investment approval is required. Companies can download business registration documents and submit their applications online. They are also free to open and maintain bank accounts in foreign currency. Share capital, though, can only be denominated in euros ( ). The minimum nominal share capital of a limited liability company in Austria amounts to 35,000, half of which ( 17,500) must be paid in cash upon formation of the company. In cases where less than half of the minimum statutory capital is paid in cash, an auditor is required to certify that the contribution in kind equals the value of half of the minimum capital.

In general, it is quite easy for a foreign company to acquire land in Austria. Such companies have the option to lease or buy land from both private and public owners. Leasing publicly owned land is not substantially different from leasing privately owned land, although public authorities appear to be slower in their process. The process of leasing private land is extremely efficient compared to the regional and global average. Registration of leases is uncommon in Vienna, as it is not required by law. If the lease agreement is filed with the land registry, it is publicly available in the register of deeds. Lease contracts can be of unlimited duration and can offer the lessee the right to subdivide, sublease, mortgage the leased land, or use it as collateral. There are no restrictions on the amount of land that may be leased. Austria is one of the few countries that have a functioning land information system (LIS) and geographic information system (GIS).

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The original rules regulating arbitration in Austria are found in sections 577 to 618 of the Austrian Code of Civil Procedure. These do not distinguish between domestic and international arbitrations, and contain specific provisions on consumer and labor disputes. The Arbitration Act (2006) amends these provisions, and is based closely on the UNCITRAL Model Law. All pecuniary disputes are arbitrable, although there may be restrictions on intra-company disputes depending on the facts of the case. Specialized legislation may also exempt other matters from arbitration. Arbitration agreements cannot be concluded orally. Parties are free to appoint arbitrators of any nationality, gender, or professional qualifications. Arbitration is not available online in Austria, although the parties are free to use any arbitral institution of their choice. The International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (VIAC) administers international arbitrations. Austrian courts are supportive of arbitration. The courts are able to provide interim injunctions during arbitration proceedings. Because this has only been permitted since 2006, there has been little practice illustrating their effectiveness. Applications for enforcement of arbitration awards are made in the district court. On average, it takes around 9 weeks to enforce an arbitration award rendered in Austria, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 14 weeks to enforce a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

Azerbaijan IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 49.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 100.0 84.0 78.5 Media 16.5 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Azerbaijan presents above average restrictions on foreign equity ownership compared to the countries in the Eastern Europe and Central Asia region included in the report. According to its laws, the state must retain a controlling stake in companies operating in the mining or oil and gas sectors. Thus, foreign (as well as domestic) capital participation is limited to a maximum of 49%. Foreign ownership in the media sectors is strictly limited as well. Unless any relevant international agreement with Azerbaijan should provide otherwise, foreign shareholding in media companies is limited to 33% for newspaper publishers and is prohibited for TV broadcasting companies. Currently, there are no such international agreements in place. While restrictions on foreign equity ownership in the financial services sectors (banking and insurance) have already been abolished, there are still sector-wide limits for total foreign capital participation.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

71.6

76.8

64.5

78.5

82.9

82.1

100.0

97.6

92.2

42.1

50.3

41.3

85.0

78.9

70.6

It takes 7 procedures and 11 days to establish a foreign-owned limited liability company (LLC) in Azerbaijan. This is faster than the regional IAB average for Eastern Europe and Central Asia and much faster than the IAB global average. There are no additional procedures required of a foreign-owned company establishing a subsidiary in Baku, Azerbaijanâ&#x20AC;&#x2122;s capital, other than the requirement to provide an apostille or notarized and translated copy of the incorporation documents and charter of the parent company abroad. A foreign-owned company does not need to get an investment approval to establish itself in Azerbaijan. The company registration is done at a one-stop shop that also serves for registration for VAT. The Ministry of Taxes issues the business registration within 3 business days and the VAT number within 5 days of application. In order to open a bank account (in local or foreign currency), the company submits a Ministry of Taxes registration form to the appropriate bank. The whole process can be done online and usually takes only 2â&#x20AC;&#x201C;3 days. There is no minimal capital requirement for LLCs, although the capital must be fully paid in prior to the state registration.

Time to lease public land (days)

105

133

140

82.4

82.5

85.2

53.6

69.7

70.6

37.0

64.4

57.9

In Azerbaijan, most foreign companies prefer to lease public land. The lease of public land is subject to the approval of the relevant governing authority. Other available options include leasing private land and purchasing privately or publicly held land. The purchase of public land is complex and time-consuming. It is legally possible to purchase private land, but not common in practice. Lease contracts can be held for a maximum of 99 years. Lease contracts are commonly for 30 years and offer the lessee the right to subdivide, sublease, or mortgage the leased land. There are no restrictions on the amount of land that may be leased. Baku has both a land registry and a cadastre, located in different agencies. They are, however, linked and coordinated to share data. There is no land information system (LIS) or geographic information system (GIS) in place that centralizes relevant information at a single point of access.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Azerbaijani Law on International Arbitration (1999) applies only to arbitrations with an international element (the place of business of one of the parties must be abroad or the subject matter of the dispute must be related to another country). The Civil Procedure Code (2000) stipulates that domestic arbitration be regulated by law. No such law was ever issued, however. The following disputes are not arbitrable: those involving immovable property, patents or trademarks, claims against carriers in shipping agreements, and intra-company and shareholder disputes. Arbitration agreements must be concluded in writing. An agreement reached through email communication between the parties is not considered valid. The law does not provide for confidentiality of the arbitration proceedings. The Azerbaijan International Commercial Arbitration Court was established pursuant to the arbitration law, but its caseload is low. Under the law, the Supreme Court of the Republic of Azerbaijan is the only body that rules on the recognition and enforcement of arbitration awards and its decision is final. However, under the Civil Procedure Code, Supreme Court decisions can be further appealed to the Plenum of the Supreme Court. So, theoretically, the Supreme Court decision on recognition can be further appealed, making the enforcement process longer. On average, it takes around 51 weeks to enforce an arbitration award rendered in Azerbaijan, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 45 weeks to enforce a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Investing Across Borders 2010

Bangladesh IAB global average (87 countries)

IAB regional average (5 countries)

Country score

Indicators

South Asia

Highlights

Bangladesh is one of the most open countries to foreign equity ownership, as measured by the Investing Across Sectors indicators. All of the 33 sectors covered by the indicators are fully open to foreign capital participation. In practice certain strategic sectors, including port and airport operation, railway freight transportation, and electricity transmission and distribution are dominated by publicly owned enterprises operating under monopolistic market structures, representing obstacles for foreign investors. Furthermore, registration of a foreign investment project with the Board of Investment (BOI) is currently only possible for investors in the manufacturing sectors. Investments in the service sectors do not enjoy the benefits associated with this registration (for example free repatriation of profits).

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

55.3

62.5

64.5

100.0

87.5

82.1

100.0

93.8

92.2

26.3

20.1

41.3

73.7

59.7

70.6

58 240

99 205

61 140

84.9

86.4

85.2

67.5

55.0

70.6

55.3

36.4

57.9

Two shareholders are required to form a limited liability company (or private limited company) in Dhaka. It takes approximately 55 days to set up a foreign-owned subsidiary engaging in international trade in Bangladesh, longer than the IAB regional and global averages. Only 1 procedure is specific to foreign-owned businessesâ&#x20AC;&#x201D;the authentication of the parent companyâ&#x20AC;&#x2122;s documentation abroad. This authentication is required to file as a shareholder with the Registrar of Joint Stock Companies and Firms (RJSC) prior to incorporation. Investment approval is not a mandatory prerequisite, although it is helpful to register with BOI in order to have access to the different facilities and institutional support provided by the government to registered investors. Permission to open a foreign-exchange bank account may be granted by Bangladesh Bank (Central Bank) on a case-by-case basis subject to adequate justification and compliance with the Bankâ&#x20AC;&#x2122;s foreign-exchange transaction guidelines. There is no minimum paid-in capital requirement for setting up a foreign LLC. However, the BOI will not issue a work permit for companies investing less than $50,000.

Foreign-owned companies seeking to access land in Bangladesh have the option to lease from both private and public owners. It is not possible, however, for a foreign company to buy publicly held land, unlike private land. Before leasing land in Dhaka, foreign companies may require approval from BOI and RJSC. A foreign-owned company may not buy agricultural land. Leases of publicly owned land may be granted for up to 99 years. Leases for privately owned land can be of unlimited duration. Lease contracts can offer the lessee the right to subdivide, sublease, or mortgage the leased land, or use it as collateral. There are no restrictions on the amount of land that may be leased. Land-related information may be found in the registry and cadastre, which are located in the same agency, but are not linked or coordinated to share data. Currently there is no land information system (LIS) or geographic information system (GIS) in Bangladesh.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration Act (2001) governs both domestic and international arbitrations in Bangladesh, although there is no statutory definition of domestic arbitration. The statute is based on the UNCITRAL Model Law, although there are a few differences. The Arbitration Act, for example, grants the high court division of the Supreme Court of Bangladesh the power to determine the jurisdiction of the arbitral tribunal in certain circumstances. Commercial matters can generally be submitted to arbitration. Arbitration agreements must be in writing. The parties are free to select arbitrators of any gender, nationality, or professional qualifications in both domestic and international arbitrations. However, foreign counsel cannot represent parties in arbitral proceedings unless they are locally licensed. There is no institution in Bangladesh that specifically administers arbitrations. Although the arbitration law is modern, in practice, the courts in Bangladesh are not yet fully supportive of the arbitration process. Furthermore, the domestic courts are overburdened, which lengthens the enforcement process. On average, it takes around 26 weeks to enforce an arbitration award in local courts, from filing an application to a writ of execution attaching assets (assuming there is no appeal).

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

Belarus IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 75.0 96.2 88.0 Electricity 64.3 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 49.0 94.9 91.2 Transportation 80.0 84.0 78.5 Media 30.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

With restrictions on foreign equity ownership in many sectors, in particular the service industries, in Belarus limits on foreign equity participation are above the average for the 20 countries covered by the Investing Across Sectors indicators in the Eastern Europe and Central Asia region. Sectors such as fixed-line telecommunications services, electricity transmission and distribution, and railway freight transportation are closed to foreign equity ownership. In several other sectors, including media and insurance, foreign ownership is limited to a less-than-50% stake. In addition, a comparatively large number of sectors are dominated by government monopolies, including, but not limited to, those mentioned above. Those monopolies, together with a high perceived difficulty of obtaining required operating licenses, make it difficult for foreign companies to invest. The government of Belarus has, however, announced its intent to privatize additional state-owned companies and relax some of the restrictions on the aforementioned sectors in the near future.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

78.9

76.8

64.5

71.4

82.9

82.1

100.0

97.6

92.2

50.0

50.3

41.3

60.0

78.9

70.6

It takes 7 days and 6 procedures to establish a foreign-owned limited liability company (LLC) in Belarus (Minsk), making it one of the fastest countries in the IAB sample. The certificate of state registration, for example, is typically issued within 1 working day after the necessary documents are submitted. An LLC in Belarus needs at least 2 shareholders. Unlike a domestic enterprise, a foreign LLC needs a minimum authorized capital of $20,000 (50% of which must be paid within the first year and the remainder within the following year).

Time to lease public land (days)

133

140

78.3

82.5

85.2

79.0

69.7

70.6

84.9

64.4

57.9

In Minsk, Belarus, the most common option for foreign companies wishing to access land is leasing public land. Other options include leasing privately held land or buying land from private and public owners. While foreign companies are not legally prohibited from buying publicly or privately held land, in practice, this option is exercised rarely. Procedures involved in leasing land do not differ significantly for foreign-owned and domestic companies. Lease contracts are limited to 99 years. The lease contract can offer the lessee the right to sublease and/or mortgage the leased land. The right to subdivide requires a long and complex procedure and therefore is not easily available. There are no restrictions on the amount of land that may be leased. Most land-related information can be acquired from the local (territorial) agency on state registration, but this information is located in several different registries within the agency, and separate applications must be submitted, and separate fees paid, in order to obtain it.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Belarusian Law on the International Arbitration Court (1999) is largely based on the UNCITRAL Model Law. It regulates arbitrations taking place under the auspices of the International Arbitration Court of the Belarusian Chamber of Commerce and Industry as well as ad hoc arbitrations in Belarus. The following commercial disputes are not arbitrable: those involving immoveable property, intra-company disputes, disputes over shareholder arrangements, and disputes involving patents and trademarks. Belarus does not recognize oral arbitration agreements or those inferred through conduct. Parties are free to choose either local or foreign counsel in both domestic and international arbitrations in the country. If both companies are incorporated in Belarus they must choose Belarus as their seat of arbitration. The Supreme Commercial Court has refused to recognize awards made abroad when the parties were Belarusian, as contrary to public order. Belarus is one of the IAB countries that enforce foreign arbitration awards the fastest (6 weeks on average), with one streamlined recognition and enforcement proceeding. Arbitration between the state and foreign companies is not allowed in the following cases: concession agreements, disputes involving natural resources, and disputes involving state-owned property, including privatization and nationalization of property.

For more information on this country, please go to http://www.investingacrossborders.org

Investing Across Borders 2010

Bolivia IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 49.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 49.0 94.5 88.0 Electricity 49.0 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 89.8 80.8 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 96.4 96.0

Bolivia’s restrictions on foreign equity ownership are above average among the 14 countries in the Latin America and the Caribbean region covered by the Investing Across Sectors indicators. The new Bolivian Constitution, adopted in 2009, stipulates restrictions on foreign equity ownership in a number of strategic sectors. For example, the exclusive right to develop and exploit oil and gas reserves is granted to a state-owned company, Yacimientos Petroliferos Fiscales Bolivianos (YPFB). Foreign investors can enter into joint venture agreements with YPFB, but they can only have a maximum share of 49%. Similarly, foreign capital participation in the mining industry is limited to a less-than-50% stake. Overt statutory ownership restrictions exist in the telecommunications sector as well—where foreign ownership is limited to 49% for fixed-line and wireless/ mobile infrastructure and services—and in the electricity sector, which has a limit of 49% in electricity generation, transmission, and distribution. With the adoption of the new Constitution, additional legislation imposing restrictions on FDI is expected.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

63.2

62.8

64.5

65.0

78.2

82.1

87.5

98.2

92.2

33.3

40.4

41.3

65.0

73.0

70.6

42 170

62 156

61 140

80.3

87.5

85.2

65.7

66.8

70.6

54.2

51.7

57.9

It takes 18 procedures and 54 days to establish a foreign-owned limited liability company (LLC) in Bolivia (La Paz). This is longer than the IAB global average, but shorter than the IAB regional average for Latin America and the Caribbean. Full foreign ownership is allowed in Bolivia. However, LLCs must have a minimum of 2 shareholders. Foreign investors do not need an investment approval in Bolivia. In addition to the procedures required of a domestic company, a foreign company establishing a subsidiary in Bolivia must legalize the parent company’s documents abroad, register the incoming foreign capital with the Central Bank, and if it wants to engage in international trade, register with the customs office as a frequent importer. A duly registered company in Bolivia is free to open and maintain a bank account in foreign currency. There is no minimum capital requirement for LLCs in Bolivia, although all the authorized capital must be paid in full before incorporation. In the case of a corporation (sociedad anónima), at least 50% of shares must be subscribed and at least 25% of all subscribed shares must be effectively paid in at incorporation.

Most foreign companies seeking to start an industrial development project in La Paz, Bolivia buy land from an existing private land owner. Leasing private land is less common. Further, the lease or purchase of public land is not possible, unless the Bolivian Congress passes specific legislation. The purchase and use of public land, therefore, is usually granted in the form of concessions, mainly for companies exploiting natural resources. Foreign investors may not acquire land within 50 kilometers of Bolivia’s borders. Private leases may be entered into if the duration is less than 5 years. For greater durations, the lease is entered into as a public deed. The Civil Code stipulates that lease agreements may not exceed 10 years. A lease contract offers the lessee the right to sublease or subdivide the land, subject to the terms of the contract, but not to mortgage the lease or use it as collateral. Land-related information can be found in the land registry and cadastre, which are located in different agencies and are not linked or coordinated to share information.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Bolivian Arbitration and Conciliation Law No. 1770 (1997) is based on the UNCITRAL Model Law. Unlike the Model Law, however, it requires a judicial review of the kompetenz-kompetenz principle, among other judicial interventions, in the case of an arbitrator challenge. All commercial matters are arbitrable and the doctrine of severability of the arbitration agreement is recognized. Arbitration agreements are only valid if concluded in writing. In domestic arbitration, proceedings must be conducted in Spanish, according to the rules in the Code of Civil Procedure, which are applicable by default. This is not required for international arbitration proceedings conducted in Bolivia. There are no legal restrictions on the choice of arbitrators in domestic or international arbitrations, but they must be an odd number. The law expressly states that arbitrators must be independent and impartial and must preserve the confidentiality of the proceedings. Parties can only choose lawyers who are licensed to practice in Bolivia to represent them in arbitrations in Bolivia. The civil commercial court enforces domestic arbitration awards. Bolivian law states that decisions granting enforcement of an arbitration award are not subject to subsequent appeal. Foreign arbitral awards must undergo recognition before the Bolivian Supreme Court of Justice, after which a competent civil commercial court can issue a writ of execution. On average, it takes around 13 weeks to enforce an arbitration award rendered in Bolivia, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 45 weeks to enforce a foreign award. In 2007, Bolivia denounced the ICSID Convention. Since then, if arbitration between foreign companies and public entities is agreed upon, references to local law and submission to local arbitration institutions are included. Currently, the Bolivian executive branch only enters into domestic arbitrations.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

Eastern Europe and Central Asia

IAB global average (87 countries)

IAB regional average (20 countries)

Indicators

Country score

Bosnia and Herzegovina Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 87.3 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 85.7 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 100.0 84.0 78.5 Media 49.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

According to the Law on the Policy of Foreign Direct Investment in Bosnia and Herzegovina, foreign investors are entitled to invest in any sector of the economy in the same form and under the same conditions as those defined for local residents. Thus, in practice, most business sectors in Bosnia and Herzegovina are fully open to foreign equity ownership. Notable exceptions to this general rule are select strategic sectors, such as publishing and media, where foreign ownership is restricted to 49%, and electric power transmission, which is closed to foreign investment. In practice, additional sectors are dominated by government monopolies (such as air transportation and airport operation) or characterized by oligopolistic market structures (such as telecommunications and electricity generation), making it difficult for foreign investors to engage.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

65.8

76.8

64.5

75.0

82.9

82.1

100.0

97.6

92.2

45.0

50.3

41.3

75.0

78.9

70.6

31 n/a

43 133

61 140

72.6

82.5

85.2

57.1

69.7

70.6

76.3

64.4

57.9

It takes 83 days and 14 procedures to establish a foreign-owned subsidiary that wants to engage in international trade, in Bosnia and Herzegovina (Sarajevo). A foreign investment approval from the Ministry of Foreign Trade and Economic Relations (MoFTER) is required of foreign companies and can take up to 10 days to obtain. This mandatory approval was abolished by the Law on Amendment of Law on FDI Policy at MoFTER, which was passed in 2010. While this law is still not in force, it is expected to come into force in mid-2010. Registration is not possible online and the documents required are not available for download. Bank accounts in foreign currency are allowed after submitting a customs registration number certificate. There is a minimum capital requirement of BAM 2,000 (~$1,300) for limited liability companies (LLCs). The statutory minimum amount of share capital for an LLC must be paid in before registering the company. Gradual payment of the share capital in an LLC is possible, but only for the amount exceeding the statutory minimum, provided that at least half of the share capital is paid in before submission of the application for registration.

Foreign companies seeking to access land in Bosnia and Herzegovina have the option to purchase either privately or publicly held land. Lease contracts can be of unlimited duration, and can offer the lessee the right to subdivide, sublease, or mortgage the leased land. The laws and regulations that govern the acquisition of land in Sarajevo are available online. There are no restrictions on the amount of land that may be leased. While most of the relevant land-related data for investors is available, in principle, it typically requires in-depth research involving different authorities and information providers. Sarajevo has a land registry and cadastre, but they are not located in the same agency nor are they linked to coordinate and share data. There is no land information system (LIS) or geographic information system (GIS) in place that centralizes relevant information at a single point of access. However, reforms are underway to provide such services.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Bosnia and Herzegovina has not enacted a law on commercial arbitration. The Law on Civil Procedure (2003) contains some provisions on arbitration that are not based on the UNCITRAL Model Law. With assistance from the IFC and other international institutions, the central government enacted legislation on mediation in 2004. The mediation law is based on the UNCITRAL Model Law on International Commercial Conciliation. The Law on Civil Procedure does not contain definitions and hence does not differentiate between domestic and international arbitration. Arbitrators are required to have a legal degree and parties can choose only an odd number of arbitrators. Foreign-owned but locally incorporated companies can only select nationals of Bosnia and Herzegovina as counsel in arbitration proceedings. The Cantonal Court in Sarajevo has jurisdiction to decide on the recognition of foreign arbitration awards. Only after this court has reached a decision, may a party apply for enforcement before a Sarajevo Municipality Court. On average, it takes around 13 weeks to enforce a foreign arbitration award from filing an application to a writ of execution attaching assets (assuming there is no appeal).

For more information on this country, please go to http://www.investingacrossborders.org

Investing Across Borders 2010

Brazil IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 100.0 94.5 88.0 Electricity 100.0 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 68.0 80.8 78.5 Media 30.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 50.0 96.4 96.0

Brazil’s restrictions on foreign equity ownership are above average among the countries in the Latin America and the Caribbean covered by the Investing Across Sectors indicators. Compared with other BRIC (Brazil, Russian Federation, India, and China) countries only Russia has fewer restrictions on foreign equity ownership than Brazil. Brazil restricts foreign equity ownership in the air transportation sector to a maximum of 20% and in media industries (both TV broadcasting and newspaper publishing) to a maximum of 30%. The health care sector is closed to foreign capital participation. In general terms, though, Brazilian legislation grants equal treatment to foreign and domestic companies.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

166

62.5

62.8

64.5

85.7

78.2

82.1

100.0

98.2

92.2

33.3

40.4

41.3

75.0

73.0

70.6

Time to lease private land (days)

Time to lease public land (days)

180

156

140

84.9

87.5

85.2

45.7

66.8

70.6

57.2

51.7

57.9

Foreign companies establishing subsidiaries in Brazil (São Paulo) must have at least 2 shareholders. Executive officers of Brazilian companies (companies incorporated in Brazil, regardless of the origin of its capital stock) must be either Brazilian citizens or foreigners who hold a Brazilian permanent visa. The permanent visa may be issued to the statutory manager of a Brazilian company. In this case, however, the company must have at least: (a) $200,000 of its capital stock directly invested by the foreign company; or (b) $50,000 (in cash or assets) of its capital stock directly invested by the foreign company as long as the company commits itself to create 10 new positions for Brazilians in the following 2 years. To file with the Commercial Registry, the company may pay an additional fee and register through SIMPI (Sindicato da Micro e Pequena Indústria do Estado de São Paulo), which offers an expedited registration process. Forms for registration with the National Corporate Taxpayers’ Registry of the Ministry of Finance may be downloaded and registration may be monitored online. While government approval is not required, foreign investments must be registered with the Brazilian Central Bank. According to the Rules for the Exchange Market and Foreign Capital (Regulamento do Mercado de Câmbio e Capitais Internacionais) issued by the Central Bank of Brazil, only a few entities are entitled to hold a foreign currency bank account in Brazil.

In São Paulo, the lease of publicly held land by foreign companies is not common, as it involves a time-consuming process. Publicly held land may be leased if such land is not designated for public use or services. Other options for foreign companies seeking to access land include leasing privately held land and buying privately or publicly held land. Certain restrictions for companies controlled by foreign capital apply on ownership of land located in certain areas, such as in rural areas, along the coastline or borders, or in the Amazon region. Lease contracts can be of unlimited duration and offer the lessee the right to subdivide and sublease the land as per municipality legislation. The leased land cannot be mortgaged or used as collateral. There are no restrictions on the amount of land that may be leased. Land-related information can be found in the land registry and cadastre, which are located in different agencies and are not linked or coordinated to share information.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Brazil’s Arbitration Law (1996) is largely based on the UNCITRAL Model Law, except that all arbitral awards made in Brazil are considered domestic. All types of commercial disputes are arbitrable. Brazil has a large number of arbitral institutions and arbitration is becoming increasingly popular. The use of arbitration to resolve shareholder disputes has also become common. There are no restrictions on the selection of arbitrators. However, arbitration in Brazil must be conducted in Portuguese, and parties in both domestic and international arbitrations can only be represented by lawyers licensed to practice in Brazil. Arbitrators are not legally required to preserve the confidentiality of the proceedings. The law provides for court assistance with orders for interim measures and evidence taking. Brazil is one of the slowest IAB countries in enforcing foreign arbitration awards. It takes on average 1 year to recognize and enforce a foreign award assuming there is no appeal, because proceedings are two-pronged, involving recognition before the Superior Court of Justice and enforcement at the Federal Court of São Paulo. A three-stage appeals process, including a constitutional appeal before the Supreme Federal Court, is also possible. Brazil has not ratified the ICSID Convention.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

Bulgaria IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 79.6 84.0 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Compared with other economies in Eastern Europe and Central Asia, Bulgaria has fewer restrictions on foreign equity ownership. Over the past few years, Bulgarian legislation has undergone harmonization with European Union legislation. During this process, many sectors of the economy have been opened to foreign capital participation. Today, Bulgaria does not apply any restrictions on foreign equity ownership in 31 of the 33 sectors measured by the Investing Across Sectors indicators. As in the other EU countries, Bulgarian Civil Aviation Act imposes restrictions on the air transportation sector, in which foreign ownership is limited to 49%. These equity restrictions, however, do not apply to investors from countries of the European Economic Area (EEA).

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

78.9

76.8

64.5

85.7

82.9

82.1

100.0

97.6

92.2

36.8

50.3

41.3

95.0

78.9

70.6

60 351

43 133

61 140

93.1

82.5

85.2

64.7

69.7

70.6

68.6

64.4

57.9

It takes 5 procedures and 20 days to establish a foreign-owned limited liability company (LLC) in Bulgaria (Sofia). This is in line with the IAB regional average for Eastern Europe and Central Asia and faster than the IAB global average. There are no additional procedures required of a foreign-owned company establishing a subsidiary in Sofia other than the requirement to provide an apostille or notarized and translated copy of the incorporation documents and charter of the parent company abroad. A foreign-owned company does not need to get an investment approval. The company registration is entirely electronic and companies can monitor the whole process on the official Web page of the registry agency. Companies in Bulgaria are free to open and maintain bank accounts in foreign currency. Bulgaria has a minimum capital requirement of BGL 5,000 (~$3,460) for domestic and foreign companies, 35% of which must be paid in at the time of registration.

Leasing public land in Sofia is slow compared to the regional and global average. It requires several procedures and takes place after approval by the respective governing bodies, and after undergoing a tender procedure. Purchase of public land is not common, as the process is time-consuming. The most common means of acquiring land is by the purchase or lease of private land. Registration of a lease agreement is not mandatory, and registered lease agreements constitute a minor percentage of existing lease agreements. In the last few years, however, registration of lease agreements has gained in popularity and most commercial lease agreements are now registered. Registration of a lease agreement is not a complicated procedure. It usually takes 2â&#x20AC;&#x201C;3 days to complete. Generally, the duration of commercial leases can be unlimited, unless the land is publicly held, in which case the statutory maximum duration is 10 years. A major land-related challenge in Sofia is the lack of a unified land registry and the fact that the cadastre does not cover all regions.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Bulgarian International Commercial Arbitration Act (ICAA, 1988, last updated 2007) regulates international commercial arbitration, but also includes references to domestic commercial arbitration. Other national laws do not impose any restrictions that could hinder the application of ICAA provisions. Bulgaria has also enacted a Mediation Act (2004). All commercial disputes are arbitrable except those involving rights over immovable property and intra-company disputes. There are 2 main arbitral institutions in Bulgaria and these have a significant caseload. If both parties are nationals or have registered offices in Bulgaria, they must choose Bulgaria as the seat of arbitration, unless one party has dominant foreign capital participation. Parties to a domestic arbitration may not choose a foreign arbitrator unless a party to the dispute has dominant foreign capital participation. Domestic arbitration proceedings must be conducted in Bulgarian. The law does not give powers to the arbitrators to decide ex aequo et bono. The law requires the impartiality and independence of arbitrators. Lawyers acting in arbitration proceedings in Bulgaria must be licensed to practice in Bulgaria. Courts may suspend the execution of an arbitral award as an interim measure upon the appellantâ&#x20AC;&#x2122;s request and provision of a guarantee in the amount of the awarded interest. Sofia City Court has exclusive jurisdiction to oversee arbitration proceedings and enforce domestic and international arbitration awards. On average, it takes around 17 weeks to enforce an arbitration award rendered in Bulgaria, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 27 weeks to enforce a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Investing Across Borders 2010

Burkina Faso IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 95.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 87.5 84.1 88.0 Electricity 100.0 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 100.0 86.6 78.5 Media 100.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Among the 21 countries covered by the Investing Across Sectors indicators in the Sub-Saharan Africa region, Burkina Faso is one of the more open economies to foreign equity ownership. Most of its sectors are fully open to foreign capital participation, although the law requires companies providing mobile or wireless communication services to have at least 1 domestic shareholder. Furthermore, the state automatically owns 10% of the shares of all companies active in the mining sector. The government is entitled to nominate 1 member of the board of directors for such companies. Select additional strategic sectors are characterized by monopolistic market structures. In particular, the oil and gas sector, the electricity transmission and distribution sectors, and the fixed-line telephony sector are dominated by publicly owned enterprises, making it difficult for foreign investors to engage.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

44.7

51.5

64.5

74.9

76.6

82.1

50.0

77.3

92.2

31.6

33.9

41.3

50.0

58.5

70.6

.. 120

72 151

61 140

94.9

82.4

85.2

67.6

73.8

70.6

67.9

55.9

57.9

It takes 5 procedures and 15 days to establish a foreign-owned limited liability company (LLC) in Burkina Faso (Ouagadougou). This is faster than the average for IAB countries both in Sub-Saharan Africa and globally. In addition to the procedures required of a domestic company, if a foreign company is managed by foreigners, it must get an investment approval (autorisation d’exercer le commerce) from the Ministry of Commerce. The authorization is never refused and usually does not take long. The law allows companies to show proof of request in order to start operating. Companies register with the Center for Business Formalities (Centre des Formalités des Entreprises—CEFORE) and are assigned a unique company ID number for company registration, fiscal identification, and social security. This usually takes about 9 business days. According to a directive of the Economic Community of West African States (ECOWAS), companies in Burkina Faso are not allowed to open bank accounts in foreign currency unless they get approval from the Burkina Faso Ministry of Finance and the Central Bank of West Africa. This approval must be renewed yearly. The minimum capital requirement of XOF 1,000,000 (~$2,000) is applicable across all OHADA (Organization for the Harmonization of Business Law in Africa) member states. It must be paid in full for the incorporation of an LLC.

Foreign companies seeking to access land in Burkina Faso have the option to buy either privately or publicly held land. Leasing or buying public land is not recommended, because the process is unpredictable. There are cases where it has taken years to lease or buy public land. Lease contracts can be held for a maximum of 99 years. If provided for in the terms of the lease contract, a lessee can subdivide, sublease, or mortgage the leased land or use it as collateral. There are no restrictions on the amount of land that may be leased. While most of the relevant land-related data for investors is available, in principle, acquiring it is burdensome, as it requires indepth research involving different authorities and information providers. Ouagadougou has a land registry and cadastre, but they are not located in the same agency nor are they linked to coordinate and share data.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The OHADA Uniform Act on Arbitration, which was adopted in 1999, governs both domestic and international arbitrations in Burkina Faso. It is easily accessible online. There are certain mandatory provisions in the act. In a domestic arbitration, for example, parties are not free to choose the nationality of the arbitrator. Parties to an international arbitration are not free to choose the professional qualifications of the arbitrator. Although the law stipulates that arbitrators must be independent and impartial in both domestic and international arbitrations, it does not require that arbitrators preserve the confidentiality of arbitration proceedings. Arbitration agreements must be in writing. It is not possible to conduct arbitrations online in Burkina Faso. The Centre d’arbitrage, de médiation et de conciliation d’Ouagadougou (CAMCO) administers arbitrations. The law does not require domestic courts to assist the arbitration process by ordering the production of documents or the appearance of witnesses. It takes approximately 10 weeks from the application for a hearing to the granting of a writ of execution attaching the assets in a domestic arbitration assuming there is no appeal, and several weeks longer for an international arbitration award. The enforcement of a foreign award takes about 13 weeks if no appeal is filed. Arbitration is not common in Burkina Faso.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

Cambodia IAB global average (87 countries)

IAB regional average (10 countries)

Country score

Indicators

East Asia and the Pacific

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 75.7 92.0 Agriculture and forestry 100.0 82.9 95.9 Light manufacturing 100.0 86.8 96.6 Telecommunications 100.0 64.9 88.0 Electricity 85.7 75.8 87.6 Banking 100.0 76.1 91.0 Insurance 100.0 80.9 91.2 Transportation 69.8 63.7 78.5 Media 100.0 36.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 91.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 84.1 96.0

Cambodia is one of the more open countries to foreign equity ownership in the East Asia and the Pacific region. Most of the sectors covered by the Investing Across Sectors indicators are fully open to foreign capital participation. Overt legal ownership restrictions do exist on port and airport operation and on the electricity transmission industries. Pursuant to the Law on Electricity, the only national transmission license is granted to the publicly owned electricity company EDC. This sector is thus closed to private investment (domestic or foreign). Port operation is closed to foreign capital participation as well. All port facilities in Cambodia are currently owned and operated directly by the public port authorities. Furthermore, Cambodian laws stipulate that the government of Cambodia must retain a majority ownership and control of basic airport infrastructure and aeronautical navigation services infrastructure. Foreign capital participation in the airport operation sector is thus limited to a less-than-50% stake.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

44.7

57.4

64.5

92.9

84.9

82.1

n/a

83.3

92.2

41.7

35.1

41.3

52.5

67.5

70.6

41 119

66 151

61 140

92.4

83.8

85.2

48.6

66.1

70.6

46.0

46.6

57.9

It takes 10 procedures and 86 days to establish a foreign-owned limited liability company (LLC) in Cambodia. This is slower than both the IAB regional average for East Asia and the Pacific and the IAB global average. An LLC must have a minimum of 2 shareholders, up to a maximum of 30 shareholders. A foreign company requires no additional procedure other than the authentication and notarization of the parent companyâ&#x20AC;&#x2122;s documents abroad, which must be submitted to incorporate the subsidiary. Investment approval is not required unless the foreign company applies to the Council for the Development of Cambodia (CDC) for investment incentives and a tax exemption. The business registration process is not yet available online. Foreign companies are free to open and maintain bank accounts in foreign currency. KHR 4,000,000 (~$1,000) is the minimum paid-in capital requirement for establishing an LLC in Cambodia.

In Cambodia, it is possible to lease privately or publicly held land. Due to the difficulty of enforcing legal rights against the state, and the additional legal formalities and procedures that must be followed to lease publicly held land, it is easier to lease private land. Companies in which foreign nationals own more than 49% of the shares are prohibited from buying land. Under Cambodian law, leases of less than 15 years are considered contractual rights and are legally classified as short-term leases. Leases of 15 years or more are legally classified as long-term leases and constitute real property rights. These rights may be transferred to another party. Lease contracts can be of unlimited duration and the amount of land that may be leased is unlimited. They can offer the lessee the right to subdivide, sublease, or mortgage the leased land. Although there is a land registry in Phnom Penh, the process of lease registration is relatively new. The issuance of long-term lease registration certificates became possible in May 2008.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Cambodiaâ&#x20AC;&#x2122;s Law on Commercial Arbitration was passed in 2005 and can be found online. It contains differing definitions for domestic and international arbitrations, and, like many laws in the East Asia and Pacific region, is based on the UNCITRAL Model Law. Arbitration agreements can be concluded via email or fax, but not orally without written agreement. The majority of commercial disputes can be referred to arbitration. Disputes involving rights over immoveable property that is located in Cambodia, however, are referred to the Cadastral Commission. Parties may select an arbitrator of any nationality or gender. However, under the current law, the arbitrator must be a member of the National Arbitration Center. Furthermore, the parties can only appoint legal counsel that is licensed to practice in Cambodia. Arbitration is still being developed in Cambodia, and although the legal framework is being worked on, practice must still be encouraged. The Arbitration Center is in the process of being developed, for example, and practitioners are unaware of any institutional arbitration, domestic or international, that has taken place in the past 12 months. It is also difficult to assess whether courts support arbitration or the enforcement of arbitration awards, as court decisions are not published. On average, it takes around 26 weeks to enforce an arbitration award rendered in Cambodia, from filing an application to a writ of execution attaching assets (assuming there is no appeal).

For more information on this country, please go to http://www.investingacrossborders.org

Investing Across Borders 2010

Cameroon IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 95.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 100.0 84.1 88.0 Electricity 71.4 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 49.0 86.6 78.5 Media 49.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

The Investment Charter (Law No. 2002/004 of April 19, 2002) of Cameroon abolished several limitations to foreign equity ownership that had existed under previous regulations (that is, the small and medium enterprises [SME] regime). Thus, most of the primary sectors and all of the manufacturing sectors covered by the Investing Across Sectors indicators are now fully open to foreign capital participation. Like a number of other countries in the Sub-Saharan Africa region, Cameroon limits foreign investment in the mining sector, in which 10% of the capital of such companies must belong to the state. Further ownership restrictions exist predominantly in the service industries, where, for example, the electricity transmission and distribution sectors are closed to foreign investment. Foreign capital participation is limited to 49% in the media industries (TV broadcasting and newspaper publishing) and in the transportation sectors (port and airport operation, domestic and international air transportation, and railway freight transportation).

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

41.1

51.5

64.5

73.6

76.6

82.1

75.0

77.3

92.2

52.6

33.9

41.3

55.0

58.5

70.6

Time to lease private land (days)

Time to lease public land (days)

108

151

140

87.4

82.4

85.2

79.6

73.8

70.6

64.6

55.9

57.9

It takes 14 procedures and 82 days to establish a foreign-owned limited liability company (LLC) in Douala, Cameroon. This process is lengthier and more complex than the IAB regional and global averages. While only 2 additional steps are required of foreign companies compared to domestic ones, these steps add an additional 48 days to the overall establishment process. A declaration of foreign investment to the Ministry of Finance is mandatory 30 days prior to the beginning of the establishment process. In addition, if the company wants to engage in international trade, registration in the importers’ file is required to obtain a “sydonia” number (a custom computer identification). This number facilitates the entry and exit of goods produced by the company. The authentication of the parent company’s documentation abroad is required only to establish a subsidiary. Foreign-owned resident companies that wish to maintain foreign currency bank accounts in Douala must obtain prior approval. The Minister of Finance issues such authorization, which is subject to approval from the Bank of Central African States (BEAC—Banque des Etats de l’Afrique Centrale) as per Section 24 of the exchange control regulations. This approval takes on average 38 days to obtain. There is a minimum paid-in capital requirement of CFA 1,000,000 (~$2,060) for setting up foreign as well as local LLCs.

Foreign companies seeking to access land in Cameroon have the option to lease or buy privately or publicly held land. The process of leasing public land is unpredictable, depending on the interests of the public authority that owns the land. In some instances, it takes a very short time and in others, may take a number of months. Most foreign companies acquire land from the state as part of an investment package. In Douala, the role of the notary public is crucial in the process of land acquisition and determines how fast it takes. The lease contract can be of an unlimited duration and can offer the lessee the right to sublease, subdivide, or mortgage the leased land. There are no restrictions on the amount of land that may be leased. Most land-related information can be acquired from the registry or cadastre. There is no land information system (LIS) or geographic information system (GIS) that centralizes relevant land information.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The OHADA Uniform Act on Arbitration (1999) which is based on the UNCITRAL Model Law governs both domestic and international arbitrations in Cameroon. The Uniform Act supersedes the existing national laws on arbitration. The principal arbitral institution under OHADA is the Common Court for Justice and Arbitration (CCJA) in Abidjan, Côte d’Ivoire. The Groupement Interpatronal du Cameroon (GICAM), created in 2005, also administers arbitration and mediation proceedings, although the CCJA remains the primary institution for settling arbitration disputes. Cameroon has ratified the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards and the Washington Convention for the Settlement of Investment Disputes (ICSID). Cameroon recognizes more grounds for refusal of recognition or enforcement of foreign arbitration awards than those listed under the New York Convention. On average, it takes around 15 weeks to enforce an arbitration award rendered in Cameroon, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 24 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

Canada IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 100.0 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 81.1 93.8 96.6 Telecommunications 46.7 89.9 88.0 Electricity 100.0 88.0 87.6 Banking 65.0 97.1 91.0 Insurance 100.0 100.0 91.2 Transportation 79.6 69.2 78.5 Media 73.4 73.3 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 50.0 91.7 96.0

Among the 12 high-income OECD countries covered by the Investing Across Sectors indicators, Canada presents more stringent restrictions on foreign equity ownership. It imposes overt statutory ownership restrictions on a number of service sectors. Foreign capital participation in the domestic and international air transportation sectors, for example, is limited to a maximum share of 49%. Furthermore, under the Canadian telecommunications and broadcasting regime, foreign investors may own only up to 20% of the shares of a Canadian operating company directly, plus an additional 33% of the shares of a holding company. In aggregate, total direct and indirect foreign ownership in the telecommunications sector (fixed-line and mobile/wireless infrastructure and services) and in the television broadcasting sectors is limited to 46⅔%. The health care sector is de facto closed to FDI because private hospitals and clinics may not receive payments from provincial health insurance funds, which are critical for the financial viability of operators in the sector.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

81.6

77.8

64.5

100.0

92.2

82.1

100.0

92.2

46.2

52.5

41.3

85.0

84.2

70.6

Time to lease private land (days)

Time to lease public land (days)

131

140

89.9

94.2

85.2

84.7

83.3

70.6

94.0

77.6

57.9

With only 6 days and 2 procedures, Canada (Toronto) enjoys one of the fastest and simplest processes of establishing a foreign-owned limited liability company (LLC). Compared to domestic companies, a foreign company requires no additional procedure other than the post-incorporation notification of the Investment Canada Agency. This notification must be made within 30 days of incorporation. Under the Investment Canada Act, unless the investment is made in “cultural industries”, affects the country’s national security, or is made in restricted sectors, it is not subject to review. Foreign investors have the option of filing either for federal incorporation or provincial registration. Federal incorporation entails one procedural step that can be done online, using “Industry Canada’s” electronic filing center. Filing can also be done by regular mail, fax, courier, or in person. A federally incorporated subsidiary has the right to operate anywhere in Canada. Foreign companies are free to open and maintain bank accounts in foreign currency. There is no minimum capital requirement for foreign or domestic companies.

Although it is possible to lease or purchase both privately and publicly held land, the lease or purchase of private land is more common. The purchase of public land may be subject to requirements to build to certain specifications within a defined timetable, failing which the public body will have reserved the right to repurchase the land from the buyer. Due to such contractual constraints, foreign companies rarely purchase public land. Leases with a term of 50 years or more are subject to a land transfer tax. There is no statutory maximum for the duration of leases. Leases can offer the lessee the right to sublease, mortgage the leased land, or use it as collateral, if provided by the contract. With respect to subdivision, leases for 21 years or more may require consent from public authorities. The province of Ontario, in which Toronto is located, is in the final stages of converting to a Register of Titles system from a Register of Deeds system.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Canada’s arbitration legislation reflects its federal nature. All Canadian provinces and territories have enacted legislation that governs domestic commercial arbitrations and international commercial arbitrations taking place in their provinces. The Province of Ontario has enacted the Arbitration Act (1991), which governs domestic arbitration and is based on the UNCITRAL Model Law, and the International Commercial Arbitration Act (1990), which governs international arbitration and expressly adopts the UNCITRAL Model Law. The legislation of the Province of Ontario is strongly governed by the principle of “party autonomy.” Commercial disputes are arbitrable, unless legislation stipulates that certain matters are expressly within the courts’ jurisdiction. Parties are free to appoint arbitrators of any nationality, gender, or professional qualifications. Foreign lawy ers representing parties in an arbitration must be licensed by the Law Society in order to provide legal services in Ontario. The parties are free to choose any arbitral institution of their choice, the most common being the ADR Institute of Canada. Canada is also one of the few jurisdictions in the world to provide online arbitration. The courts are generally very supportive of commercial arbitration. On average, it takes around 11 weeks to enforce an arbitration award, whether rendered in Canada or in a foreign country, from filing an application to a writ of execution attaching assets (assuming there is no appeal). Appeals can be made to the Ontario Court of Appeal. Canada has not ratified the ICSID Convention.

For more information on this country, please go to http://www.investingacrossborders.org

Investing Across Borders 2010

Chile IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 100.0 94.5 88.0 Electricity 100.0 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 100.0 80.8 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 96.4 96.0

Chile is one of the most open countries to foreign equity ownership, as measured by the Investing Across Sectors indicators. All 33 sectors covered by the indicators are fully open to foreign capital participation. There are no sectors with monopolistic or oligopolistic market structures, with the exception of the oil and gas industry, nor are there any perceived difficulties in obtaining any required operating licenses.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

63.2

62.8

64.5

85.7

78.2

82.1

100.0

98.2

92.2

33.3

40.4

41.3

80.0

73.0

70.6

Time to lease private land (days)

Time to lease public land (days)

156

140

94.9

87.5

85.2

62.8

66.8

70.6

74.8

51.7

57.9

It takes 11 procedures and 29 days to establish a foreign-owned limited liability company (LLC) in Chile (Santiago). This is one of the shortest processes among the IAB Latin America and the Caribbean countries. Full foreign ownership is allowed in Chile. LLCs need a minimum of 2 shareholders. In addition to the steps required of a domestic company, a foreign company establishing a subsidiary in Chile must authenticate the parent company’s documents abroad and register the incoming capital with the Central Bank. This procedure, established under Chapter XIV of the Foreign Exchange Regulations, requires a notice of conversion of foreign currency into Chilean pesos when the investment exceeds $10,000. The registration process at the Registry of Commerce of Santiago is available online. Companies in Chile are free to open and maintain bank accounts in foreign currency. There is no minimum capital requirement for foreign or domestic companies.

In Chile, public land is bought or leased by public auction. There are some exceptions that allow a direct sale of public land after approval from the public authority holding the land. Foreign companies may also lease or purchase private land. Leases of private land do not need to be executed before any authority such as a notary public. They also do not need to be registered at any public or private institution. Nevertheless, it is advisable to execute such agreements by means of a public deed before a notary public to make the document eligible for registration and to provide easier enforcement of the lease. A lessee may be able to sublease, subdivide, mortgage, or transfer the lease, subject to the terms of the contract. There are restrictions on the amount of public land that may be leased, but not on private land. The process of leasing private and public land is efficient. Land-related information may be found in the land registry. There is no cadastre, land information system (LIS), or geographic information system (GIS) in Santiago.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Chile has a dual arbitration system. Domestic arbitration is governed by the Chilean Code of the Judiciary (1943) and the Chilean Code of Civil Procedure (1893). International commercial arbitration is governed by the Chilean Law on International Commercial Arbitration (2004), which strictly follows the 1985 UNCITRAL Model Law. Regulation of domestic arbitration, although not based on the UNCITRAL Model Law, is in line with the general principles of party autonomy, including “kompetenz-kompetenz” and the impartiality of arbitrators. Domestic arbitration awards may be subject to challenges relating to the facts and/or merits of the dispute before the Chilean courts of justice as opposed to international arbitration awards rendered in Chile. All commercial disputes are arbitrable except those involving patents and trademarks. In domestic arbitrations, parties may only choose an arbitral institution located in Chile. In addition, arbitrators must be Spanish speaking and be Chilean citizens. Chilean law differentiates between arbitration at law and arbitration at equity. In domestic arbitrations at law, arbitrators must be Chilean lawyers. Freedom to choose a non-Chilean lawyer exists only in ex aequo et bono (equity) arbitrations. In domestic arbitrations at law, parties may only be represented by Chilean lawyers, as arbitral tribunals are regarded as courts of justice. None of these restrictions apply to international arbitration in Chile. On average, it takes around 33 weeks to enforce an arbitration award rendered in Chile, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and only 12 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

China IAB global average (87 countries)

IAB regional average (10 countries)

Country score

Indicators

East Asia and the Pacific

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 75.0 75.7 92.0 Agriculture and forestry 100.0 82.9 95.9 Light manufacturing 75.0 86.8 96.6 Telecommunications 49.0 64.9 88.0 Electricity 85.4 75.8 87.6 Banking 62.5 76.1 91.0 Insurance 50.0 80.9 91.2 Transportation 49.0 63.7 78.5 Media

0.0

36.1

68.0

Sector group 1 (constr., tourism, retail)

83.3

91.6

98.1

Sector group 2 (health care, waste mgt.)

85.0

84.1

96.0

63.7

57.4

64.5

96.4

84.9

82.1

n/a

83.3

92.2

50.0

35.1

41.3

52.5

67.5

70.6

Time to lease private land (days)

Time to lease public land (days)

129

151

140

94.9

83.8

85.2

76.1

66.1

70.6

60.2

46.6

57.9

China’s limits on foreign equity ownership are stricter compared to the countries covered by the Investing Across Sectors indicators in East Asia and the Pacific, and globally. The principal rules governing FDI are found in the Catalogue of Industries for Guiding Foreign Investment (amended in 2007), which lists specific sectors in which foreign investment is encouraged, restricted, or prohibited. It imposes restrictions on foreign equity ownership in the majority of the sectors covered by the Investing Across Sectors indicators, in particular the service industries. Sectors such as publishing, television broadcasting, and newspaper publishing are closed to foreign ownership. In several other sectors, including telecommunications (fixed-line and mobile/wireless), electricity transmission and distribution, railway freight transportation, air transportation (domestic and international), and airport and port operation, foreign ownership is limited to a less-than-50% stake. Further restrictions are imposed on foreign capital participation in the oil and gas industry, the financial services sectors (banking and insurance), health care, and the tourism industry. The majority of manufacturing sectors, though, which in the past have been the main sources of FDI into the country, are fully open to foreign equity ownership.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

It takes 18 procedures and 99 days to establish a foreign-owned limited liability company (LLC) in Shanghai, China. This is slower than both the IAB regional average for East Asia and the Pacific and the IAB global average. Five procedures are required exclusively of foreign companies. The incorporation documents of the parent company must be notarized by a local notary and authenticated by a Chinese consulate in the country of origin. Foreign investors must submit their applications, along with feasibility studies and charters of association, to the Foreign Investment Commission (under the district government for foreign investment approval) after obtaining a company name pre-registration. This step usually takes 30 days. Foreign companies that wish to engage in international trade must also get customs registration certificates and foreign trade licenses, which can take on average 13 days. In addition, foreign companies must obtain a financial certificate for enterprises with foreign investment as well as a foreign exchange registration certificate, which take about 2 weeks each. Company registration documents are available online, although submissions may not yet be made online. Foreign companies wishing to maintain bank accounts in foreign currency need the approval of the State Administration of Foreign Exchange, which takes on average 4 days. The minimum paid-in capital requirement for an LLC is CNY 30,000 (~$4,390). Chinese law allows for deposit of the capital contribution in installments, provided that the first payment is no less than 15% of the registered capital. The balance of the registered capital must be paid within 2 years of the issuance of the business license.

In China, land is either owned by the state and local governments, or collectively by farmers. Private land ownership is not allowed. A foreign company can obtain land-use rights directly from the government by grant or by the lease, or purchase of previously granted land-use rights. Buying the right to use certain land from the state is considered the most efficient way for foreign companies to access land. The purchase of the land-use right of industrial land, however, is subject to a mandatory public bidding process. Land rights may not be pledged, mortgaged, leased, or transferred. They may also be obtained by grant for a maximum term of 50 years, renewable upon expiration by paying a grant fee to the government. If a lessee intends to transfer the land-use right to another company, the land must be developed to a certain level before the transfer. Landrelated information may be found in the land registry and cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The People’s Republic of China’s Arbitration Law of 1995 is largely based on the UNCITRAL Model Law. The law regulates arbitrations taking place under the auspices of the Chinese International Economic and Trade Arbitration Commission (CIETAC) or any of the other 200 arbitral institutions. While an arbitration agreement may be concluded by email or fax, it must be in writing. The Chinese Arbitration Law limits court intervention in arbitral proceedings, both international and domestic. Parties may select arbitrators of any gender, nationality, or professional qualifications. The arbitrator must, however, be on the CIETAC arbitrators’ list. One of the most significant departures from the UNCITRAL Model Law is that under Article 16 of the Chinese Arbitration Law, the arbitration agreement must name an arbitral institution. Therefore, ad hoc arbitration is not permitted in China and any arbitration must be conducted under the auspices of CIETAC or another institution. On average, it takes around 26 weeks to enforce an arbitration award rendered in China, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 31 weeks for a foreign award. The difference between the recognition or enforcement of domestic and international arbitration decisions is that any refusal to enforce a foreign arbitral decision must be approved by the Supreme People’s Court, reflecting the proarbitration stance of Chinese law.

For more information on this country, please go to http://www.investingacrossborders.org

100

Investing Across Borders 2010

Colombia IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 100.0 94.5 88.0 Electricity 100.0 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 100.0 80.8 78.5 Media 70.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 96.4 96.0

Among the 14 countries in Latin America and the Caribbean covered by the Investing Across Sectors indicators, Colombia is one of the most open economies to foreign equity ownership. With the exception of TV broadcasting, all other sectors covered by the indicators are fully open to foreign capital participation. Foreign ownership in TV broadcasting companies is limited to 40%. Companies publishing newspapers can have up to 100% foreign capital investment; there is a requirement, however, for the director or general manager to be a Colombian national.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

68.4

62.8

64.5

85.7

78.2

82.1

100.0

98.2

92.2

52.6

40.4

41.3

With a total of 13 procedures taking 27 days, the process of establishing a foreign-owned subsidiary that wants to engage in international trade, in Colombia (Bogotá) is faster than both the IAB regional and global averages. In addition to the procedures required of a domestic company, the foreign subsidiary must apply for a Proportionality Certificate for foreign workers. In a company employing more than 20 workers, only 20% of the workforce can be foreigners; this includes the board of directors, if they are also employees. Limited liability companies (LLC) in Colombia must have a minimum of 2 shareholders. There is no need to obtain prior investment approval. Foreign investment must be registered at the Central Bank upon depositing the capital contributions. This registration can be submitted online. Registration with the Chamber of Commerce cannot be submitted online although investors may monitor the process online. Colombian banks cannot offer foreign currency accounts. However, Colombian residents are allowed to hold foreign currency accounts abroad. If the account is used to handle funds for certain transactions (such as offshore loans, foreign investments, imports, and exports) the account must be registered with the Central Bank within 30 days and it must be managed in compliance with the foreign exchange rules.

80.0

73.0

70.6

Time to lease private land (days)

Time to lease public land (days)

111

156

140

93.1

87.5

85.2

52.3

66.8

70.6

18.2

51.7

57.9

Foreign companies seeking to access land in Colombia have the option to lease or buy land from private or public owners. The process of leasing publicly owned land may require participation in a public bidding procedure. Lease contracts can be of unlimited duration and can offer the lessee the right to subdivide and sublease land. It is not mandatory that the lease be registered. A lease is considered a contractual right, not a property right, and thus cannot be used as collateral or be mortgaged. There are no restrictions on the amount of the land that may be leased. Land-related information is available in the land registry and cadastre. Most relevant data for investors can be found at these 2 agencies, but this information relates only to land that is registered. Even though the cadastre and registry are not located in the same agency, they are linked to share data and coordinated to maintain accurate land-related information. Currently there are efforts to make information at these agencies available online. The process of leasing private and public land is relatively efficient.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

There are 4 main decrees that regulate arbitration in Colombia, as well as several other laws and decrees regulating separate issues such as fees for arbitration centers, recognition and enforcement of foreign arbitration awards, and investment arbitration. There are 3 kinds of arbitration in Colombia: (i) arbitration subject to law, where the arbitrators decide according to Colombian law; (ii) arbitration subject to equity, where the arbitrators decide according to common sense and equity; and (iii) technical arbitration, where the arbitrators decide according to the specific knowledge of a determined science, art, or trade. Certain intra-company disputes and those related to administrative acts are not arbitrable. Disputes involving immovable property can only be resolved through domestic arbitration. In domestic arbitration “at law,” arbitrators must be Colombian nationals and lawyers admitted to practice in Colombia, the proceedings must be conducted in Spanish, and parties may only choose Colombian lawyers as counsel. Arbitrators are not legally bound to preserve confidentiality in international arbitrations taking place in Colombia. There are 3 main arbitral institutions in Bogotá, as well as many institutions throughout the country. The law does not provide for court assistance with orders for interim measures and taking of evidence. Recognition and enforcement of foreign awards is a two-stage process: recognition before the Supreme Court of Justice is followed by enforcement before the Civil Circuit Court of Bogotá. On average, it takes around 60 weeks to enforce an arbitration award rendered in Colombia, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 96 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

101

Costa Rica IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 100.0 94.5 88.0 Electricity 35.0 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 100.0 80.8 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 96.4 96.0

Costa Rican legislation provides for equal treatment of domestic and foreign investors with respect to ownership of local companies. Thus, most of the industry sectors covered by the Investing Across Sectors indicators are fully open to foreign equity ownership. As a notable exception, foreign capital participation in the electricity sector is restricted. The electricity transmission and distribution sectors are closed to foreign investment. The transmission infrastructure and distribution system are currently owned and operated by a publicly owned company. In the electricity generation sector, foreign capital participation is allowed up to 49%. The generated electricity, however, must be sold through the state-owned transmission and distribution companies. Furthermore, the fixed-line telecommunications infrastructure is owned and operated by a publicly owned enterprise under monopolistic market conditions, potentially representing an obstacle for foreign investors to engage in these sectors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

73.7

62.8

64.5

100.0

78.2

82.1

100.0

98.2

92.2

73.7

40.4

41.3

60.0

73.0

70.6

23 136

62 156

61 140

92.4

87.5

85.2

59.0

66.8

70.6

50.9

51.7

57.9

It takes 14 procedures and 63 days to establish a foreign-owned limited liability company (LLC) in Costa Rica (San José). This is shorter than the regional average for Latin America and the Caribbean, but longer than the IAB global average. Full foreign ownership is allowed in Costa Rica. However, LLCs need a minimum of 2 shareholders. In addition to the steps required of a domestic company, a foreign company establishing a subsidiary in Costa Rica must provide an authenticated copy of the parent company’s documents. If it wishes to engage in international trade, it will also need to register with the Ministry of Foreign Relations and Foreign Trade in order to receive an import and export identification number (this can be submitted online). Foreign companies do not need an investment approval and are free to open and maintain a bank account in foreign currency. There is no minimum capital requirement for foreign or domestic LLCs in Costa Rica. However, 20% of the capital stock of the company must be paid in full prior to establishment.

In Costa Rica it is not possible to buy public land. Furthermore, the leasing of public land is restricted to concession agreements, which may only be granted by a municipality and only on coastal shorelines. In order to lease public land, the company must be owned by at least 51% Costa Rican shareholders. It is possible to lease or buy private land. The lease contract may be of unlimited duration, but the common lease duration is about 10 years. The lease contract can offer the lessee the right to sublease and/or mortgage the leased land or use the lease as collateral. The right to subdivide is possible, subject to applicable zoning laws. If land is granted as a concession of public land, it cannot be subleased or subdivided. Land-related information may be found in the centralized National Registry that holds the property registry and the cadastre registry. It is possible to get most land-related information from the National Registry.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Alternative dispute resolution (ADR) in Costa Rica is regulated by the Law on Alternate Conflict Resolution and the Promotion of Social Peace (Law No. 7727/1997). All commercial disputes are arbitrable. Due to public policy considerations, disputes between foreign companies and the state over natural resources cannot be resolved by arbitration. The law does not differentiate between domestic and international arbitration, but it does between arbitration at law and arbitration at equity. In the case of arbitration at law, the arbitrators must be attorneys licensed to practice in Costa Rica. The law does not allow the arbitration tribunal to order preventive measures. The tribunal must abide by the civil procedural legislation in what is applicable and the number of arbitrators must be at least 3, but always an odd number. Arbitration proceedings in Costa Rica must be conducted in Spanish. Parties must be represented by lawyers who are licensed to practice in Costa Rica. Parties can choose any arbitral institution, even one outside of Costa Rica, except when the dispute concerns immovable property. Under Article 47 of the Code of Civil Procedure, Costa Rican judges have exclusive jurisdiction over immovable or movable assets located in Costa Rica. There are several active ADR centers in Costa Rica that administer arbitrations, conciliations, and mediations. There are no legal provisions mandating courts to assist arbitral tribunals with the taking of evidence, but there are provisions for assistance with orders for interim measures. It can take around 39 weeks to enforce an arbitration award in a San José civil court (with no appeal). Foreign awards must first undergo recognition before the First Chamber of the Supreme Court, which takes roughly 32 weeks.

For more information on this country, please go to http://www.investingacrossborders.org

102

Investing Across Borders 2010

Côte d’Ivoire IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 100.0 84.1 88.0 Electricity 100.0 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 100.0 86.6 78.5 Media 100.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Côte d’Ivoire is one of the most open countries to foreign equity ownership, as measured by the Investing Across Sectors indicators. All of its business sectors covered by the indicators are fully open to foreign investment. With the exception of electricity transmission, there are no other sectors with monopolistic or oligopolistic market structures nor are there any perceived difficulties in obtaining any required operating licenses.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

52.6

51.5

64.5

86.6

76.6

82.1

62.5

77.3

92.2

47.4

33.9

41.3

75.0

58.5

70.6

62 276

72 151

61 140

94.9

82.4

85.2

82.9

73.8

70.6

55.8

55.9

57.9

It takes 12 procedures and 42 days to establish a foreign-owned limited liability company (LLC) in Côte d’Ivoire (Abidjan). This is slightly faster than the IAB average for Sub-Saharan Africa and in line with the IAB global average. In addition to the procedures required of a domestic company, a foreign company engaged in international trade will need to obtain a trading license from the Ministry of Foreign Trade as well as an exchange authorization transfer of capital (importation, payments abroad, and repatriation of profits) from the Central Bank. Companies must register separately with the commercial registry, the tax department of the Ministry of Economy and Finance, and the National Social Security Fund. According to a directive of the Economic Community of West African States (ECOWAS), companies in Côte d’Ivoire are not allowed to open bank accounts in foreign currency unless they get approval from the Côte d’Ivoire Ministry of Finance and the Central Bank of West Africa. This approval must be renewed yearly. The minimum capital requirement of XOF 1,000,000 (~$2,000) is applicable across all OHADA (Organization for the Harmonization of Business Law in Africa) member states. It must be paid in full for the incorporation of an LLC.

Foreign companies seeking to access land in Côte d’Ivoire have the option to lease or buy both privately and publicly held land. There is no outright prohibition of foreign ownership of land. However, the process involved in leasing or buying public land is complicated and time-consuming. The process involved in leasing public land is significantly slower than the global or regional average. Lease contracts can be held for a maximum duration of 99 years, but the usual duration is 30 years. The lease contract can offer the lessee the right to subdivide, sublease, or mortgage the leased land or use it as collateral. There are no restrictions on the amount of land that may be leased. Land-related information may be found in the registry or cadastre. Most of the laws relating to the land are old, and need to be updated. There is no land information system (LIS) or geographic information system (GIS) in place that centralizes relevant land information.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Côte d’Ivoire is a party to the OHADA Treaty (Organisation pour l’Harmonisation en Afrique du Droit des Affaires). Arbitration is therefore governed by the Uniform Act on Arbitration, which is based on the UNCITRAL Model Law. The act was signed on March 11, 1999 and entered into force 90 days later. The Uniform Act supersedes the existing national laws on arbitration. The principal arbitral institution under OHADA is the Common Court for Justice and Arbitration (CCJA) in Abidjan, Côte d’Ivoire. The Cour d’Arbitrage de Côte d’Ivoire (CACI), created in 1997, is widely used for domestic arbitration. Even though CACI’s mandate confers jurisdiction for both domestic and international arbitration, the CCJA is generally preferred for international disputes. The courts in Côte d’Ivoire enforce arbitral tribunal decisions in line with the New York Convention and arbitration is now a prominent form of dispute resolution in Côte d’Ivoire. Côte d’Ivoire has ratified the New York Convention and the ICSID Convention. On average, it takes around 21 weeks to enforce an arbitration award rendered in Côte d’Ivoire, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 21 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

103

Croatia IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 69.4 84.0 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Compared to other economies in the Eastern Europe and Central Asia region covered by the Investing Across Sectors indicators, Croatia is one of the more open countries to foreign equity ownership. Overt legal ownership restrictions are in place only in the transportation sector, where foreign ownership of air transportation companies (domestic and international) and airport operators is limited by the Act on Air Traffic (Official Gazette No. 132/98, 100/04, 178/04, 46/07) to a maximum of 49%. Thus, foreign ownership in the transportation sector group is more restricted than the regional average in Eastern Europe and Central Asia. On the other hand, with no restrictions in place in the media, electricity, and telecommunication sectors, Croatia is more open in those sector groups than its peer countries in the region.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

81.6

76.8

64.5

85.7

82.9

82.1

100.0

97.6

92.2

55.0

50.3

41.3

75.0

78.9

70.6

78 107

43 133

61 140

93.1

82.5

85.2

71.4

69.7

70.6

52.7

64.4

57.9

It takes 9 procedures and 23 days to establish a foreign-owned limited liability company (LLC) in Croatia (Zagreb). This is in line with the IAB regional average for Eastern Europe and Central Asia and faster than the IAB global average. Foreign investors do not need to seek an investment approval. They must, however, authenticate the documents of the parent company abroad. According to the Foreign Exchange Act, foreign investments must also be declared to the Croatian National Bank within 30 days for statistical purposes. There is a statutory limit of 15 days to process the company registration with the commercial court. According to the new Regulation on Ways of Performing Registrations in the Court Registry, applications to the court registries could be submitted in electronic form by a notary public. Companies in Croatia are free to open and maintain bank accounts in foreign currency. The minimum capital requirement for domestic and foreign companies is HRK 20,000 (~$3,720). At incorporation, investors must pay in a minimum of 25% of their declared capital and no less than HRK 10,000 (~$1,860).

In Croatia, foreign companies most commonly buy private land. The purchase of public land is a long and complicated procedure requiring a public auction. It is possible to lease both private and public land, but a lease of land under Croatian law represents only a contractual relationship between the parties of the lease agreement. The lessee can acquire only the right to use the land, but not to build on it. In order to obtain the right for future construction, the lessee must enter into a building rights agreement. The maximum duration of a lease of publicly held land is stipulated in advance in the public bidding criteria. A lessee may sublease, subdivide, or mortgage the leased land, or use the lease as collateral, subject to the lease contract. Most land-related information can be found in the land registry and cadastre as well as online. There are currently efforts underway to harmonize the information in the land registry and cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Croatian Law on Arbitration (2001) regulates both national and international arbitration proceedings in Croatia. All commercial disputes are arbitrable except those involving shareholder arrangements. Parties are free to appoint arbitrators of any nationality or professional qualifications. Acting judges of the Republic of Croatia can also act as arbitrators, but only as chairs of the arbitral tribunal or as sole arbitrators. Article 12 of the Arbitration Law requires the independence and impartiality of arbitrators. Parties cannot be represented by foreign lawyers in domestic arbitration proceedings, but this restriction does not apply to international arbitrations taking place in Croatia. Arbitral awards have the power of final court judgments, unless the parties explicitly agree that the award may be challenged before a higher arbitration court. Parties to domestic or international arbitration are free to choose any seat of arbitration, even outside of Croatia. A commercial court has jurisdiction to enforce domestic and foreign awards. On average, it takes around 26 weeks to enforce an arbitration award rendered in Croatia, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 48 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

104

Investing Across Borders 2010

Czech Republic IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 100.0 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 100.0 93.8 96.6 Telecommunications 100.0 89.9 88.0 Electricity 100.0 88.0 87.6 Banking 100.0 97.1 91.0 Insurance 100.0 100.0 91.2 Transportation 79.6 69.2 78.5 Media 100.0 73.3 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 91.7 96.0

All relevant regulation on foreign ownership of local companies in the Czech Republic is nondiscriminatory to foreign investors. With the exception of the domestic and international air transportation sectors, all industries covered by the Investing Across Sectors indicators are fully open to foreign equity ownership. As in the other EU member countries, foreign ownership in the air transportation sector is limited to 49% for investors from outside of the European Economic Area (EEA). Foreign capital participation is not restricted in the electricity transmission sector, but the sector is dominated by a publicly owned enterprise and a monopolistic market structure. This fact, together with a high perceived difficulty of obtaining the required operating license, makes it difficult for foreign companies to engage.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

81.6

77.8

64.5

85.7

92.2

82.1

100.0

92.2

75.0

52.5

41.3

90.0

84.2

70.6

Time to lease private land (days)

Time to lease public land (days)

131

140

97.4

94.2

85.2

88.5

83.3

70.6

65.8

77.6

57.9

The process of establishing a foreign-owned subsidiary in the Czech Republic (Prague) is in line with the IAB regional average for high-income OECD countries and faster than the IAB global average. The 2 additional procedures required exclusively of foreign companies add only 3 days to the establishment process. A foreign enterprise is required to provide an apostille and a copy of the parent company documents that has been notarized abroad (if applicable). In addition, foreign direct investments must be reported to the Czech National Bank for statistical purposes. This notification usually takes 2 days. No investment approval is required. All documents required for company registration must be submitted in Czech. Business registration forms are downloadable online on the Ministry of Justiceâ&#x20AC;&#x2122;s Web site. To register a newly founded company in the Commercial Register, an application must be submitted to the relevant court administering the registry. Some documents must be submitted to the registry in original hard copies. However, the documents to be filed with the Collection of Deeds are submitted electronically. Foreign companies are free to open and maintain bank accounts in foreign currency. The minimum capital requirement for domestic and foreign limited liability companies (LLCs) in Prague is CZK 200,000 (~$10,688), half of which must be paid in upon registration. In the case of a sole-shareholder LLC, the registered capital must be paid in full prior to registration.

In the Czech Republic a foreign company may acquire both publicly and privately held land. The acquisition of public land, however, takes significantly longer. When acquiring public land, a company may be required to obtain approvals from the public authority in charge of administering the land. In most cases, a public tender process will be carried out before completing the lease or purchase of land. The law does not stipulate the maximum duration of a lease, although a lease concluded for 99 years is considered a lease for an undefined period. No lease registration is required in the Czech Republic. Renewal or transfer of a lease is allowed if included in the lease contract. Similarly, the leased land may be subleased or subdivided in accordance with the lease contract. Land-related information may be found mostly in the land registry or cadastre. Currently, there are efforts to draft a new civil code that would improve the process of land administration in the cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Act No. 216/1994 governs both domestic and international arbitrations in the Czech Republic, unlike the UNCITRAL Model Law. However, there is no specific definition of either domestic or international arbitration included in the legislation. Other provisions relating to arbitration are found in the Commercial Code and the Civil Procedure Code. In order for disputes to be arbitrable, they must be capable of settlement, and be considered a property dispute, according to the act. Certain disputes cannot be submitted to arbitration, including insolvency or bankruptcy matters. Arbitration agreements cannot be made orally. Parties are free to appoint arbitrators of any nationality, gender, or professional qualifications. They can also elect foreign lawyers to represent them in arbitration proceedings. The parties are free to choose any arbitral institution of their choice, the most common being the arbitration court attached to the Economic Chamber and the Agricultural Chamber of the Czech Republic. Unlike other arbitral institutions, the arbitration court provides for fast-track arbitration in certain cases. The Czech Republic is also one of the few jurisdictions that provide online arbitration. Assuming that there is no objection to the enforcement, the law stipulates that decisions on enforcement be rendered within 15 days. In practice, this takes roughly 18 weeks for a domestic award and 20 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

105

Ecuador IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 100.0 94.5 88.0 Electricity 85.4 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 69.8 80.8 78.5 Media 74.5 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 96.4 96.0

Of the 33 sectors covered by the Investing Across Sectors indicators, 28 are fully open to foreign equity ownership in Ecuador. While the manufacturing and primary industries are fully open to foreign investors, the country imposes ownership restrictions on a number of service sectors. The railway freight transportation sector, for example, is closed to foreign capital participation. Railway transport services in Ecuador are rendered exclusively by a state-owned railway company. Furthermore, the Law on Radio and Television Broadcasting limits foreign ownership of local television channels to a maximum share of 49%. Overt statutory ownership restrictions also exist in the electricity sector, where private ownership (foreign or domestic) of companies engaged in the transmission and distribution of electricity is limited to a less-than-50% stake. In the electricity generation sector foreign capital participation in publicly owned companies is limited to 49%. There are no restrictions on foreign ownership in privately owned companies. However, prior consent must be obtained from the Electricity Authority.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

55.3

62.8

64.5

61.5

78.2

82.1

100.0

98.2

92.2

27.8

40.4

41.3

77.5

73.0

70.6

106 151

62 156

61 140

86.3

87.5

85.2

58.3

66.8

70.6

59.8

51.7

57.9

It takes 16 procedures and 68 days to start a foreign-owned limited liability company (LLC) in Ecuador (Quito). The process is slightly shorter than the regional average for Latin America and the Caribbean and longer than the IAB global average. The law allows 100% foreign ownership, but mandates that at least 80% of the employees must be Ecuadorian. In addition to the steps required of a domestic company, a foreign company establishing a subsidiary in Ecuador must provide notarized and translated documents pertaining to the parent company, such as a certificate of good standing and a list of shareholders. It must also declare its capital with the Central Bank and, if it wants to engage in international trade, register as an importer with the customs office. There is no investment approval required for foreign companies in Ecuador. Companies are free to open and maintain a bank account in foreign currencyâ&#x20AC;&#x201D;most typically U.S. dollars and euros. The minimum capital requirement for LLCs is $400, 50% of which must be paid in at the time of incorporation.

Foreign companies seeking to access land in Ecuador have the option to lease or buy privately or publicly held land. Before public land is available for lease or purchase, it must first be reclassified as private land. The more common option for companies with long-term plans is to purchase private land. Lease rent rates in Quito are subject to a maximum fixed by the law. It is common, however, for such maximum rates not to be applied to lease agreements, as they tend to be considerably lower than the real commercial value of the lease. There is no limit on the duration of lease contracts in Quito. The lease contract can offer the lessee the right to sublease and/or mortgage the leased land. There are no restrictions on the amount of land that may be leased. Information regarding land can be obtained from the land registry and cadastre, which are located in the same agency, but are not linked or coordinated to share data.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Ecuadorian Law on Arbitration and Mediation (1997) differentiates between arbitration at equity and arbitration at law. The rules for arbitration at equity are much more liberal. The law also differentiates between international and domestic arbitration. In domestic arbitration at law arbitrators must be lawyers licensed to practice in Ecuador, and arbitral proceedings must be conducted in Spanish. This is not required in international arbitrations. Parties may choose between arbitration at law and at equity, unless one of them is a public institution, in which case the arbitration must be at law. In both domestic and international arbitrations in Ecuador, parties must be represented by lawyers licensed to practice in Ecuador. The law does not require confidentiality of arbitration proceedings. There are several active alternative dispute resolution (ADR) institutions in Ecuador that administer arbitrations and mediations. There are no legal provisions mandating courts to assist arbitral tribunals with the taking of evidence, but there are provisions for assistance with orders for interim measures. On average, it takes around 12 weeks to enforce an arbitration award rendered in Ecuador, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 31 weeks for a foreign award. A pro-arbitration interpretation of Article 42 of the Arbitration and Mediation Law suggests that foreign awards do not need to go through a recognition stage and should be enforced the same as domestic awards. In practice, however, this issue is not fully resolved and foreign awards may be required to undergo recognition before a chamber of the Provincial Court of Justice.

For more information on this country, please go to http://www.investingacrossborders.org

106

Investing Across Borders 2010

Egypt, Arab Rep. IAB global average (87 countries)

IAB regional average (5 countries)

Country score

Indicators

Middle East and North Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 78.8 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 100.0 95.0 96.6 Telecommunications 100.0 84.0 88.0 Electricity 100.0 68.5 87.6 Banking 50.0 82.0 91.0 Insurance 100.0 92.0 91.2 Transportation 76.0 63.2 78.5 Media 50.0 70.0 68.0 Sector group 1 (constr., tourism, retail) 83.0 94.9 98.1 Sector group 2 (health care, waste mgt.) 100.0 90.0 96.0

Of the 5 countries covered by the Investing Across Sectors indicators in Middle East and North Africa, the Arab Republic of Egypt is one of the more open economies to foreign equity ownership. The country has opened up the majority of the sectors of its economy to foreign investors. Overt statutory ownership restrictions are imposed on 5 of the 33 sectors measured by the indicators. Publishing daily newspapers, for example, is reserved for domestic companies. In other sectors, such as construction and air transportation, foreign ownership is limited to a minority stake. In addition to these overt statutory ownership restrictions, a comparatively large number of sectors are dominated by government monopolies, including, but not limited to, those mentioned above.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

63.2

58.6

64.5

85.7

78.3

82.1

75.0

68.8

92.2

30.0

46.4

41.3

50.0

66.0

70.6

45 ..

59 123

61 140

89.9

82.0

85.2

74.9

65.5

70.6

54.2

48.7

57.9

With 7 procedures and 8 days, the process of establishing a foreign-owned subsidiary in Egypt is the fastest among the countries surveyed by IAB in the Middle East and North Africa region, and is also faster than the IAB global average. Limited liability companies (LLCs) require at least 2 shareholders and a maximum of 50. The only additional procedure required of foreign companies is the requirement for the parent company to provide its documentation (articles of association, resolution of the board approving establishment of the subsidiary) duly authenticated, notarized, and legalized at the Egyptian consulate abroad and the Ministry of Foreign Affairs in Egypt. No investment approval is needed. Approval from the General Authority for Investment (GAFI) is granted in the form of a notification of incorporation issued upon the company’s establishment. Foreign companies are allowed to hold foreign currency bank accounts. An amendment to the Companies’ Law Executive Regulations in 2009 abolished the minimum capital requirements for LLCs.

Foreign companies seeking to access land in Egypt have the option to lease or buy privately or publicly held land. The law requires that all leases exceeding 9 years be registered. Leasing publicly owned land may require participation in a public bidding process. Lease contracts can be of unlimited duration; the usual duration for most long-term leases, however, is 59 years. The land that may be leased is usually limited to 4,000 square meters. The lease can offer the lessee the right to subdivide or sublease land, subject to the terms of the lease contract. However, the lease cannot be mortgaged or used as collateral. A foreign company cannot sell the land unless it has held it for at least 5 years. In exceptional circumstances, approval to sell the land before the end of the 5-year period can be sought from the relevant minister. Most relevant data for investors in land can be found in the land registry and cadastre, but they are not linked to share data. The process of leasing private land is more efficient than in most other countries. The IAB team was unable to determine how long it takes, on average, to lease public land. This information is therefore currently missing.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Arbitration in Egypt is regulated by Law No. 27/1994, which is largely based on the UNCITRAL Model Law, with some deviations. It includes fixed time limits for rendering an arbitration award (12 months, with a possible 6-month extension). Either party may request an extension from the competent court or ask that the proceedings be terminated. All commercial disputes are arbitrable, except intra-company disputes and those involving immovable property. Labor disputes are also not subject to alternative dispute resolution (ADR). If a public entity is a party to the arbitration agreement, the agreement must be signed by the competent minister, who cannot delegate this duty. Parties may choose arbitrators of any nationality or professional qualifications. Arbitration proceedings in Egypt can be conducted in a foreign language. Only lawyers who are licensed to practice in Egypt can represent parties in arbitrations. The courts in Egypt have stated a pro-arbitration policy in several leading decisions. The president of the Cairo Court of Appeal is competent to issue orders for interim measures or to assist the arbitral tribunal with the taking of evidence at the tribunal’s request. A specialized circuit at the Cairo Court of Appeal is the only competent court to rule on applications for enforcement of international arbitration awards made in Egypt or foreign arbitration awards. Domestic awards are enforced by a commercial court of first instance. Enforcement takes around 48 weeks for a domestic award and 51 weeks for a foreign award. Egyptian arbitration law follows the UNCITRAL grounds to set aside an arbitration award and adds an additional ground by which each party can request setting aside an award if the arbitral tribunal did not apply the law as agreed upon in the arbitration agreement.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

107

Ethiopia IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 0.0 84.1 88.0 Electricity 50.0 90.5 87.6 Banking 0.0 84.7 91.0 Insurance 0.0 87.3 91.2 Transportation 10.0 86.6 78.5 Media 0.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 50.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Among the 21 countries covered by the Investing Across Sectors indicators in the Sub-Saharan Africa region, Ethiopia presents foreign equity ownership restrictions above average for the region. It imposes restrictions on foreign equity ownership in many sectors, in particular the service industries. Of the 33 sectors covered by the indicators, 13 are closed to foreign capital participation. The list of sectors in which FDI is prohibited includes the telecommunications industry (including fixed-line and mobile/wireless services and infrastructure), the financial services industry (insurance and banking), the media sectors (TV broadcasting and newspaper publishing), the transportation industry, and the retail sector. In addition, a comparatively large number of sectors are dominated by government monopolies, including most of the industries mentioned above. Notable additional sectors dominated by publicly owned enterprises include the electricity and waste management industry. Those monopolies, together with a high perceived difficulty of obtaining required operating licenses, make it difficult for foreign companies to invest. The government of Ethiopia has announced its intent to privatize additional state-owned companies and relax some of the restrictions on the aforementioned sectors in the near future.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

21.1

51.5

64.5

74.9

76.6

82.1

n/a

77.3

92.2

0.0

33.9

41.3

2.5

58.5

70.6

75 142

72 151

61 140

49.9

82.4

85.2

74.0

73.8

70.6

34.8

55.9

57.9

It takes 10 procedures and 28 days to establish a foreign-owned limited liability company (LLC) in Addis Ababa, Ethiopia. This process is faster than the IAB regional average for Sub-Saharan Africa and the IAB global average. In addition to the procedures required of domestic companies, the parent company must authenticate its documents abroad. It must also submit an investment project proposal to the Ethiopian Investment Authority to obtain investment approval. Said authority screens the documents on behalf of the Ministry of Trade and clears them for signature at the Documents Authentication Office. This investment permit is valid for 1 year and may be renewed annually until the project is completed. The foreign company, if it wants to engage in international trade, must also obtain a trade license. In addition, foreign investors must have their investment capital inflow (either in cash or in kind), external loans, and suppliersâ&#x20AC;&#x2122; or foreign partnersâ&#x20AC;&#x2122; credits registered with the National Bank of Ethiopia (NBE). Ethiopia is one of the few countries surveyed by IAB that does not have its commercial laws and regulations available online. Companies wishing to open a foreign currency bank account must obtain approval from the National Bank of Ethiopia (Central Bank), which can take weeks to process. The minimum capital requirement for a wholly foreign-owned LLC is $100,000, whereas the requirement is $60,000 if the investment is made jointly with a local partner.

The Ethiopian Constitution states that all land is owned by the state. The most common option for foreign companies seeking to acquire land is to lease public land, since private ownership is prohibited. Land may be leased from the regional authorities where the land is located. The most common means of leasing land is through a public auction. It is also possible to lease land through private negotiations with the lessor. This process is usually bureaucratic, time-consuming, and opaque. Lease contracts are limited to 99 years. The lease contract can offer the lessee the right to sublease and/or mortgage the leased land. All these transactions are subject to the terms of the contract and are limited to the amount of time left on the lease. There are no formal land information agencies such as a national land registry or cadastre. Most land-related information can be acquired from the local office of land leasing in the relevant regional authority.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Ethiopian Civil Code of Procedure governs arbitrations in Ethiopia. There is no specific arbitration act. The legal provisions governing arbitration are not available online. Arbitration agreements may be concluded orally or in writing or they may be inferred by conduct. Foreign nationals are not allowed to act as arbitrators in Ethiopia, while local arbitrators must be able speak English, have a business license, and pass a specific examination at the Ministry of Justice. The Federal High Court in Ethiopia is the competent court for enforcement of arbitration awards. Appeals may be made to the Federal Supreme Court and ultimately to the Federal Court of Cassation. On average, it takes around 54 weeks to enforce an arbitration award rendered in Ethiopia, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 55 weeks for a foreign award. Investors can enter into arbitration agreements with the state or a state entity concerning concession agreements, infrastructure contracts, and contracts dealing with natural resources. As a general rule, investors are granted broad party autonomy, including the right to choose international arbitration institution rules. Ethiopia has not signed the New York Convention and has signed, but not ratified, the ICSID Convention. There is very little arbitration practice in Ethiopia.

For more information on this country, please go to http://www.investingacrossborders.org

108

Investing Across Borders 2010

France IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 100.0 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 80.0 93.8 96.6 Telecommunications 100.0 89.9 88.0 Electricity 100.0 88.0 87.6 Banking 100.0 97.1 91.0 Insurance 100.0 100.0 91.2 Transportation 59.6 69.2 78.5 Media 20.0 73.3 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 91.7 96.0

France does not apply any restrictions on foreign equity ownership in 27 of the 33 sectors measured by the Investing Across Sectors indicators. Yet, its limits on foreign equity ownership are higher than the average for the high-income OECD countries covered by the indicators. Like the other European Union countries, France imposes restrictions on the air transportation sector, in which foreign equity is limited to 49%. This equity restriction, however, only applies to investors from countries outside of the European Economic Area (EEA). Foreign ownership in the TV broadcasting, newspaper, and publishing sectors is limited to 20% for investors from non–EU countries. Port operation is closed to foreign capital participation. All port facilities in France are currently owned and operated by a publicly owned company.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

77.5

77.8

64.5

99.9

92.2

82.1

100.0

92.2

47.4

52.5

41.3

90.0

84.2

70.6

91 142

50 88

61 140

90.0

94.2

85.2

86.6

83.3

70.6

94.0

77.6

57.9

France offers a simple and fast process for starting a foreign business. It takes 9 days and 7 procedures to establish a foreign-owned subsidiary in Paris. Two of the 7 procedural steps required are specific to foreignowned businesses. Foreign investors must only declare their investment for statistical purposes. Unless subject to a specific exemption, all companies in France under direct or indirect foreign control must also submit an administrative declaration of their investment. As is the case in other high-income OECD countries surveyed by IAB, foreign companies are allowed to hold commercial foreign currency bank accounts without approval. The minimum authorized paid-in capital for a limited liability company is € 1. There are no restrictions on the composition of the board of directors or the appointment of foreigners as managers.

Foreign companies seeking to access land in France have the option to lease or buy land from both private and public owners. Public land must be reclassified before it is available for leasing. Leasing of publicly held land takes place through direct negotiations with the relevant public body and the lessee. No public bidding process is required. Lease contracts can be of unlimited duration and can offer the lessee the right to subdivide, sublease, mortgage the leased land, or use it as collateral. Registration of leases is uncommon, as it is not required by law. There are no restrictions on the amount of land that may be leased. Land-related information can be found in the land registry and cadastre, which are located in different agencies and are not linked or coordinated to share data. There is no land information system (LIS) or geographic information system (GIS) in place that centralizes relevant information at a single point of access.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Articles 1442 to 1507 of the Code of Civil Procedure and Articles 2059 to 2061 of the Civil Code govern domestic and international arbitrations in France. Articles 131-1 et. seq. of the Code of Civil Procedure govern mediation. The arbitration provisions are not based on the UNCITRAL Model Law. International arbitration is defined as involving the interests of international trade. Domestic arbitration is governed by stricter rules than international arbitration. In domestic arbitrations, for example, the arbitration agreement must be in writing. There are no specific requirements as to the form and content of an international arbitration agreement, and it does not need to be in writing. There are many institutions in France that administer arbitrations, and the country is one of the leading forums for international arbitration. French courts have adopted a liberal attitude toward arbitration and strongly support it, upholding an arbitrator’s jurisdiction wherever possible. On average, it takes around 5 weeks to enforce an arbitration award rendered in France or in a foreign country, from filing an application to a writ of execution attaching assets (assuming there is no appeal). Appeals may be made to the Cour d’appel de Paris. Generally, the state and public entities do not enter into arbitration.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

109

Georgia IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 100.0 84.0 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Georgia is one of the most open countries to foreign equity ownership as measured by the Investing Across Sectors indicators. All of the 33 sectors covered by the indicators are fully open to foreign investment. There are neither sectors with monopolistic or oligopolistic market structures nor any perceived difficulties in obtaining any required operating licenses.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

84.2

76.8

64.5

86.7

82.9

82.1

100.0

97.6

92.2

52.6

50.3

41.3

80.0

78.9

70.6

With only 4 procedures and 4 days, Georgia (Tbilisi) is among the fastest countries in the world in terms of establishing a foreign-owned limited liability company (LLC). A foreign company requires no additional procedure other than the authentication of the parent company’s documents abroad. According to the new order on the Approval of Instruction on State and/or Tax Registration Procedure of Taxpayers and Branches, a company must be registered on the same day of filing or the following day. The application is available online. Registering with the Entrepreneurial Register and obtaining an identification number and a certificate of state and tax registration are required in order to commence the company’s activities. Companies in Georgia are free to open and maintain bank accounts in foreign currency. There is no minimum capital requirement for foreign or domestic companies. Since 2008, evidence of contribution to the company’s capital is no longer required.

Time to lease public land (days)

133

140

85.8

82.5

85.2

75.2

69.7

70.6

53.6

64.4

57.9

In Tbilisi, Georgia’s capital, registration of land-related rights has become a simpler and quicker process due to a law that was adopted in 2008. Both privately and publicly held land may be leased or bought. Publicly held land may be leased through direct negotiations with the public authority that owns the land. If there are several persons or companies seeking to lease the land, then the relevant public body is obliged to hold a competitive bidding process. Different approvals may be required from different state agencies depending on where the land is located. For example, more approvals may be required to lease land located near cultural monuments. Fast-track registration of land is available in Tbilisi, for a higher fee. Lease contracts can be of unlimited duration and can offer the lessee the right to subdivide, sublease, or mortgage the leased land, subject to the terms of the lease contract. There are no restrictions on the amount of land that may be leased. Tbilisi has both a land registry and a cadastre, which are linked and coordinated to share data.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

When Investing Across Borders (IAB) data was collected in 2009, arbitration in Georgia was governed by the Law on Private Arbitration of 1997. The law requires the existence of a prior written agreement between the parties to an arbitration. It does not specify, however, whether exchange of documents via email or fax could constitute such written agreement. Parties can demand replacement of an arbitrator in case of reasonable doubts about the arbitrator’s impartiality or independence, or if the arbitrator does not know the language of the proceedings. Parties are free to appoint arbitrators of any nationality or professional qualifications. Parties can choose foreign counsel to represent them in arbitration proceedings. Georgian Civil Procedural Code contains a chapter on the participation of courts in arbitration proceedings and on the execution of arbitration awards. The Code grants the courts of Georgia the right to deem an arbitration invalid if a criminal case arises in connection with the dispute being considered and if the court deems that resolution of the case by an arbitral tribunal may have adverse consequences. The National Enforcement Bureau, a public entity under the Ministry of Justice, enforces domestic arbitration awards, which takes around 13 weeks. The Supreme Court of Georgia has jurisdiction to enforce foreign arbitration awards, which takes around 37 weeks. A new arbitration law should have been passed in early 2010. Its content will be reflected in the next IAB report.

For more information on this country, please go to http://www.investingacrossborders.org

110

Investing Across Borders 2010

Ghana IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 90.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 100.0 84.1 88.0 Electricity 100.0 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 100.0 86.6 78.5 Media 100.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Ghana is one of the more open economies to foreign equity ownership in the Sub-Saharan Africa region. All of its major sectors covered by the Investing Across Sectors indicators, with the exception of the primary sectors, are fully open to foreign capital participation. The equity restrictions in the primary sectors (mining and oil and gas) are stipulated in the Minerals and Mining Act (2006, Act 703), and the Petroleum (Exploration and Production) Law (1994, Act 84). Both acts mandate a compulsory local participation in investment projects; the government automatically acquires a minimum equity share of 10% in ventures at no cost. In addition to these overt legal restrictions on foreign equity ownership, the electricity transmission and distribution sectors are dominated by publicly owned companies, representing a further potential obstacle to foreign investors. Furthermore, Ghanaian laws specify a minimum investment amount for foreign companies, which is currently set at $50,000 or the equivalent in goods. Portfolio investments and businesses set up solely for export are exempted from this regulation.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

34.2

51.5

64.5

90.0

76.6

82.1

n/a

77.3

92.2

30.0

33.9

41.3

85.0

58.5

70.6

Time to lease private land (days)

104

Time to lease public land (days)

247

151

140

74.9

82.4

85.2

88.5

73.8

70.6

40.9

55.9

57.9

It takes 10 procedures and 72 days to establish a foreign-owned limited liability company (LLC) that wants to engage in international trade, in Accra, Ghana. This is longer than the IAB regional average for Sub-Saharan Africa. Foreign investors must obtain a certificate of capital importation, which can take 14 days. The local authorized dealer must confirm the import of capital with the Bank of Ghana, which will then confirm the transaction to the Ghana Investment Promotion Centre (GIPC) for investment registration purposes. According to the Ghana Investment Promotion Centre Act (1994), all foreign investors must register their investment with GIPC. This registration is only required of foreign companies and takes 11 days to complete. E-copies of Ghanaâ&#x20AC;&#x2122;s commercial laws and regulations can be obtained for a fee from a private firm that has computerized all the laws. At least 1 member of the board of directors must be a Ghanaian resident. Foreign companies can hold foreign currency bank accounts. The minimum capital requirement for a wholly foreign-owned LLC is GHs 74,500 (~$52,000). This requirement does not apply to local companies.

The process of leasing land in Accra can be lengthy and unpredictable. A foreign company cannot buy publicly or privately held land. It is, however, possible to lease publicly or privately held land. Industrial or commercial leases are restricted to a maximum duration of 50 years. Not all privately held land is registered in the land registry, making it difficult to ascertain who the landowner is. In many cases, the process of leasing private land may be more cumbersome than that for public land. Any disposal of publicly held land requires consent of the Lands Commission. Lease contracts can offer the lessee the right to subdivide, sublease, or mortgage the leased land. In the case of public land, consent is required from the Lands Commission. There are no restrictions on the amount of land that may be leased. Though land-related information is not easy to obtain, there is a Land Administration Project currently underway. This project seeks to create a database of decisions from land disputes as well as to centralize all relevant land-related information.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration Act (1961) governs arbitrations in Ghana, but the legislation is not readily available online. The law distinguishes between domestic and international arbitrations. An international arbitration is defined as an award made in Ghana pursuant to an arbitration agreement that is not governed by Ghanaian law. A domestic arbitration is defined as an arbitration agreement governed by the laws of Ghana with an arbitration award made in Ghana. Commercial disputes are generally arbitrable in Ghana, although disputes relating to property interests are not. Arbitration agreements must be in writing, and the law does not allow for severability from the underlying contract. Parties may choose an arbitrator of any nationality, gender, or professional qualifications. They may also choose foreign lawyers to represent them in arbitrations. The Ghana Arbitration Centre administers arbitrations in Ghana; arbitrations cannot be conducted online. On average, it takes around 62 weeks to enforce an arbitration award rendered in Ghana or in a foreign country, from filing an application to a writ of execution attaching assets (assuming there is no appeal). Appeals can be made to the Court of Appeal, which will significantly increase the length of time to enforce an award (an estimated 4 years).

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

111

Greece IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 100.0 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 100.0 93.8 96.6 Telecommunications 100.0 89.9 88.0 Electricity 0.0 88.0 87.6 Banking 100.0 97.1 91.0 Insurance 100.0 100.0 91.2 Transportation 49.4 69.2 78.5 Media

100.0

73.3

68.0

Sector group 1 (constr., tourism, retail)

100.0

98.1

Sector group 2 (health care, waste mgt.)

100.0

91.7

96.0

68.4

77.8

64.5

85.7

92.2

82.1

100.0

92.2

47.4

52.5

41.3

80.0

84.2

70.6

140

97.4

94.2

85.2

86.1

83.3

70.6

48.6

77.6

57.9

Greece presents restrictions on foreign equity ownership greater than the average for the 11 member states of the European Union covered by the Investing Across Sectors indicators. It imposes restrictions on foreign equity ownership in select utility sectors, in particular in the electricity industry. Pursuant to Article 22 of Law 2773/1999 and to Presidential Decree 328/2000, the Hellenic Transmission System Operator S.A. (ΔΕΣΜΗΕ Α.Ε.) is granted exclusive rights to the transmission and distribution of electricity in Greece. Private capital participation, domestic or foreign, in those sectors is, therefore, not possible. The electricity generation sector is also closed to foreign capital from countries outside of the European Union. Presidential Decree 41/2005 imposes the same restriction on the railway freight transportation sector. Like the other EU countries covered by the indicators, Greece imposes restrictions on the air transportation sector, in which foreign ownership is limited to 49%. This equity restriction, however, only applies to investors from countries outside of the European Economic Area (EEA). Furthermore, foreign capital participation in the airport operation sector is limited to a less-than-50% share. Currently, all Greek airports are owned and operated by public entities.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

The process of establishing a foreign-owned limited liability company (LLC) in Athens, Greece is in line with the IAB regional average for high-income OECD countries, but faster than the IAB global average. In addition to the procedures required of domestic companies, foreign companies must provide an apostille and a notarized copy of the parent company documents. In addition, the company must register with the Greek Tax Authority for Foreigners and obtain a Greek Tax Registration Number. This step takes only 1 day. No investment approval is required. Any company established in Greece that is involved in international trade must be registered either with the Exporters Registry or the Commercial Agents (imports-exports) Registry. A recent legislative amendment (Art. 16 of Law 3661/2008) states that an LLC can begin its operations solely by furnishing a certificate from the Printing Office as proof of the commencement of its operations. The articles of association must be signed before a notary public and in the presence of a local counsel. The Chamber of Commerce and Industry has recently initiated a one-stop shop for LLC incorporation. Foreign companies are free to open and maintain bank accounts in foreign currency. Business registration is not yet possible online. The minimum paid-in capital requirement for domestic and foreign LLCs in Greece is € 4,500. Foreign companies seeking to access land in Greece have the option to lease or buy land from both private and public owners. The procedures involved in leasing private land require a simple contract, usually written, so as to keep a record of it, since a lease is typically valid even if orally agreed upon. There is no legal obligation to register leases. The process of leasing or buying publicly held land is governed by very specific regulations. Such land is usually leased through a public tender competition. Lease contracts can be of unlimited duration. Leases can offer the lessee the right to transfer, sublease, or mortgage the leased land or use it as collateral. Subdivision of land is subject to applicable zoning laws. There are no restrictions on the amount of land that may be leased. Land-related information can be found in the land registry and cadastre, which are not linked or coordinated to share data. There is currently legislation in place that seeks to improve the operation of the cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

There are 2 separate regimes governing arbitration in Greece. Law 2735/1999 regulates international commercial arbitration, and the Code of Civil Procedure (Presidential Decree 503/1985) governs domestic arbitration. There is no statutory definition of domestic arbitration. It is considered, by default, to be an arbitration taking place in Greece that does not fall within the definition of international arbitration. Private law disputes are generally arbitrable, providing that the parties have the power to dispose of the object in dispute. Parties are free to appoint arbitrators of any nationality, gender, or professional qualifications. The laws require arbitrators to be independent and impartial. The parties may also retain foreign lawyers to represent them in arbitration proceedings. They may select any arbitral institution of their choice. Online arbitration is not an available option. There are several arbitral institutions in Greece; the 2 most commonly used are the Athens Chamber of Commerce and Industry and the Chamber of Engineers. Arbitral tribunals are not generally thought to have the power to rule on their own jurisdiction, although the court will often refer parties who have so agreed to arbitration. On average, it takes around 45 weeks to enforce an arbitration award rendered in Greece, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 43 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

112

Investing Across Borders 2010

Guatemala IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 100.0 94.5 88.0 Electricity 100.0 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 100.0 80.8 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 96.4 96.0

Guatemala is one of the most open countries to foreign equity ownership, as measured by the Investing Across Sectors indicators. All of the 33 sectors covered by the indicators are fully open to foreign capital participation. With the exception of port and airport operation, there are no sectors with monopolistic or oligopolistic market structures or any perceived difficulties in obtaining any required operating licenses.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

57.9

62.8

64.5

78.6

78.2

82.1

100.0

98.2

92.2

27.8

40.4

41.3

70.0

73.0

70.6

34 168

62 156

61 140

91.6

87.5

85.2

72.3

66.8

70.6

58.4

51.7

57.9

It takes 12 procedures and 30 days to establish a foreign-owned limited liability company (LLC) in Guatemala (Guatemala City). This process is one of the shortest among the IAB countries in Latin America and the Caribbean and is shorter than the IAB global average. While foreign ownership is allowed, the law requires at least 2 shareholders for LLCs. The only additional requirements are the legalization of the parent company’s documentation in its country of origin and the registration of a power of attorney for the person responsible for creating the company in Guatemala. There is no requirement for an investment approval. Companies in Guatemala are free to open and maintain a bank account in foreign currency. The minimum capital requirement for domestic and foreign companies is GTQ 5,000 (~$625), although LLCs are required to pay in their entire capital before the deed of constitution is executed.

The most common way for foreign companies to acquire land is to lease or buy private land. Publicly held land may be leased or bought through a public auction. Only leases held for greater than 3 years require registration. The maximum duration of private leases may be unlimited. The usual duration is 15 years, however. There are no restrictions on the amount of private land that may be leased. The lease contract can offer the lessee the right to transfer, sublease, or subdivide the leased land as well as to mortgage it or use it as collateral. On the other hand, there are restrictions on the amount of publicly held land that may be leased as well as on the right to transfer, renew, sublease, or subdivide the lease. Land-related information can be found in the land registry and cadastre. There are currently efforts underway to improve the availability and accessibility of land-related information through a newly formed public agency, the Cadastre Information Registry (RIC).

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Guatemalan Arbitration Law (Decree 67-95) adopted in 1995 is largely based on the UNCITRAL Model Law. Commercial disputes are generally arbitrable, except matters for which the law established a special procedure extensively limiting the scope of arbitrable disputes. Due to public policy considerations, disputes between foreign companies and the state over natural resources cannot be resolved by arbitration. There are no legal restrictions on the parties’ choice of arbitrators, seat of arbitration, or language of proceedings for either domestic or international arbitration. However, only lawyers who are licensed to practice locally may represent parties in arbitrations in Guatemala. The law requires the impartiality of arbitrators but does not provide for confidentiality of the proceedings. There are 3 active arbitration centers in Guatemala: Centro de Arbitraje y Conciliación de la Cámara de Comercio de Guatemala (CENAC), Comisión de Resolución de Conflictos de la Cámara de Industria de Guatemala (CRECIG), and Centro Privado de Dictamen, Conciliación y Arbitraje (CDCA). Courts are required to assist arbitrators in the taking of evidence and enforcement of orders for provisional measures. On average, it takes around 30 weeks to enforce an arbitration award rendered in Guatemala or in a foreign country, from filing an application to a writ of execution attaching assets (assuming there is no appeal).

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

113

Haiti IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 100.0 94.5 88.0 Electricity 100.0 82.5 87.6 Banking 49.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 80.0 80.8 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 96.4 96.0

Foreign investment in Haiti is subject to a general ownership restriction across all business sectors as stipulated in the country’s Commercial Code. Any locally incorporated company, regardless of the business sector in which it is active, must have at least 3 shareholders, one of whom must be a Haitian national. Haitian law further stipulates that any foreign investment with a “potential impact on the country’s economy” is subject to presidential approval, regardless of the business activity concerned. In addition to these general restrictions, the country imposes sector-specific limits on foreign equity ownership in 2 of the 33 sectors covered by the Investing Across Sectors indicators. Foreign capital participation in the banking industry is limited to a maximum of 49% and the domestic air transportation sector is closed to foreign equity ownership. In addition, several industries, such as port and airport operation and the fixed-line telecommunications sector are dominated by government monopolies. Those monopolies, together with a high perceived difficulty of obtaining required operating licenses, make it difficult for foreign companies to invest.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

212

63.2

62.8

64.5

71.4

78.2

82.1

87.5

98.2

92.2

30.0

40.4

41.3

40.0

73.0

70.6

90 219

62 156

61 140

79.9

87.5

85.2

74.9

66.8

70.6

28.5

51.7

57.9

It takes on average 212 days to establish a foreign-owned subsidiary in Port-au-Prince, longer than the IAB regional and global averages. In addition to the steps required of domestic companies, foreign investors must authenticate the parent’s company documentation abroad, legalize said documents, and obtain the consul’s signature at the Ministry of Foreign Affairs. No investment approval or trade license are required. Once the investor pays the “patente,” it is used for import and export. Haiti is the only IAB country where the minimum capital requirement is more favorable for foreign than domestic companies. If a wholly foreign-owned company is registered, there is no specific minimum capital requirement. In the case of joint ventures with one or more Haitian shareholders, the minimum capital requirement is HTG 100,000 (~$2,500) for industrial companies or HTG 25,000 (~$630) for commercial companies. If the subsidiary is wholly foreign-owned, there is no requirement to have a Haitian shareholder on the board of directors.

The process of leasing publicly held land in Port au Prince is unpredictable. All public land is owned by the municipality. Legally, nothing prevents the municipality from leasing land, but it is uncommon. The process of leasing public land is not transparent and the amount of time it takes depends on the government interests involved. Foreign companies seeking to access land also have the option to lease or buy land from private owners or to buy publicly held land. A foreign company can only buy land subject to approval from the Justice Minister. There are limitations as to the amount of land that can be purchased. Lease contracts can offer the lessee the right to sublease, mortgage, or subdivide the land. Subdivision is subject to applicable zoning laws. Land-related information can be found in the land registry. There is no cadastre or land information system (LIS) in place that centralizes relevant information at a single point of access.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Arbitration in Haiti is governed by the 2006 addition to the Civil Procedures Code of 1963. All commercial matters are arbitrable, except for disputes involving the state, government entities, minors, and incompetent adults. The Haitian Arbitration Center was established in 2008 under the leadership of the Haitian Commercial Chamber, but is not yet fully operational and practice is lacking. Arbitration agreements must be concluded in writing; agreements concluded by email, fax, or other electronic methods are not legally binding due to security considerations (Haiti does not have encryption of emails and parties may change their content in bad faith). There are no restrictions on the identity of arbitrators, but arbitration proceedings must be conducted in French. Parties can only choose an odd number of arbitrators, and no more than 3. There have not been any cases of enforcement of arbitration awards in Haiti to date. Haiti has signed, but not officially ratified, the ICSID Convention.

For more information on this country, please go to http://www.investingacrossborders.org

114

Investing Across Borders 2010

Honduras IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 100.0 94.5 88.0 Electricity 100.0 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 89.8 80.8 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 96.4 96.0

Honduras has opened up the majority of the sectors of its economy to foreign equity ownership. As a notable exception, overt legal ownership restrictions still exist on the domestic air transportation industry. Foreign capital participation in a company providing such transportation services is limited to a maximum share of 49%. Furthermore, the Constitution of the Republic of Honduras requires that the editorial and management staff of local media companies, such as newspaper publishing and radio and television broadcasting enterprises, be Honduran citizens. This restriction does not, however, affect the ownership structure of such companies, which may be 100% foreign-owned. Primarily publicly owned enterprises with monopolistic market structures represent a further potential obstacle to foreign investors in the railway freight transportation, port operation, and electricity transmission and distribution sectors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

68.4

62.8

64.5

78.6

78.2

82.1

100.0

98.2

92.2

55.6

40.4

41.3

75.0

73.0

70.6

61 182

62 156

61 140

97.6

87.5

85.2

73.3

66.8

70.6

59.5

51.7

57.9

It takes 15 procedures and 35 days to establish a foreign-owned limited liability company (LLC) in Honduras (Tegucigalpa). This process is one of the shortest among the IAB countries in Latin America and the Caribbean and is shorter than the IAB global average. In addition to the procedures required of domestic companies, a foreign company must legalize and authenticate the documents of the parent company in the country of origin. If it wants to engage in international trade and import raw material from abroad, the company must also file an application with the Ministry of Finance. This can take up to a month. There is no investment authorization requirement in Honduras. The tax authority now requires a companyâ&#x20AC;&#x2122;s legal representative to have a residence card in order to issue the tax ID. This process can take up to a year and many companies get around it by naming a Honduran representative and later changing their bylaws to elect the desired representative. Companies in Honduras are free to open and maintain a bank account in foreign currency. The minimum capital requirement for domestic and foreign LLCs is HNL 5,000 (~$265). Only 25% of this, however, must be paid in at incorporation.

Foreign companies seeking to access land in Honduras have the option to lease or buy land from both private and public owners. There are certain restrictions on the purchase or lease of land along the border or coastline. There are exceptions to these restrictions for certain tourism projects. About 80% of land is unregistered and a thorough due diligence process is thus necessary to determine whether land is available for lease or purchase. Registration is not required for lease contracts of less than 3 years. Approval from the National Agrarian Institute is required for the acquisition of all land parcels greater than 200 hectares. Lease contracts can be of unlimited duration and can offer the lessee the right to subdivide or sublease the leased land as well as to mortgage it or use it as collateral. Land-related information may be found in the land registry or cadastre, which are not linked or coordinated to share data.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Honduran Conciliation and Arbitration Law (2000) distinguishes between domestic and international arbitration, as well as between arbitration at law and arbitration at equity. In domestic arbitrations at law, arbitrators must be lawyers licensed to practice in Honduras. Arbitration proceedings must be conducted in Spanish. Representation by foreign lawyers is not permitted in domestic arbitration. The seat of arbitration must be in Honduras if the dispute is domestic and between local parties. There are 3 main arbitration and conciliation centers: the Center for Conciliation and Arbitration of the Chamber of Commerce of Tegucigalpa, the Center for Conciliation and Arbitration of the Chamber of Commerce of CortĂŠs, and the Center for Conciliation and Arbitration of the Honduran Bar Association. There are no legal provisions mandating courts to assist arbitral tribunals with the taking of evidence, but there are provisions for assistance with orders for interim measures. On average, it takes around 21 weeks to enforce an arbitration award rendered in Honduras, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 36 weeks for a foreign award. Foreign awards must first undergo a recognition proceeding before the Supreme Court of Justice. The decision cannot be appealed. The Supreme Court of Justice has jurisdiction to enforce international awards against the state.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

115

India IAB global average (87 countries)

IAB regional average (5 countries)

Country score

Indicators

South Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 88.0 92.0 Agriculture and forestry 50.0 90.0 95.9 Light manufacturing 81.5 96.3 96.6 Telecommunications 74.0 94.8 88.0 Electricity 100.0 94.3 87.6 Banking 87.0 87.2 91.0 Insurance 26.0 75.4 91.2 Transportation 59.6 79.8 78.5 Media 63.0 68.0 68.0 Sector group 1 (constr., tourism, retail) 83.7 96.7 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Indiaâ&#x20AC;&#x2122;s restrictions on foreign equity ownership are greater than the average of the countries covered by the Investing Across Sectors indicators in the South Asia region and of the BRIC (Brazil, Russian Federation, India, and China) countries. India imposes restrictions on foreign equity ownership in many sectors, and in particular in the service industries. Sectors such as railway freight transportation and forestry are dominated by public monopolies and are closed to foreign equity participation. With the exception of certain activities specified by law, foreign ownership in the agriculture sector is also not allowed. Foreign ownership of publishing companies and newspapers is limited to a maximum of 26%. In the financial services sector, foreign capital participation in local banks is limited to 87% and in insurance companies to 26%. Furthermore, foreign ownership in the telecommunications sector (including fixed-line and wireless/mobile infrastructure and services) is limited to a less-than-75% stake.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

76.3

62.5

64.5

92.9

87.5

82.1

87.5

93.8

92.2

15.8

20.1

41.3

85.0

59.7

70.6

Time to lease private land (days)

Time to lease public land (days)

295

205

140

88.5

86.4

85.2

67.6

55.0

70.6

53.4

36.4

57.9

It takes 16 procedures and 46 days to establish a foreign-owned limited liability company (LLC) in India (Mumbai). This is slightly slower than the average for countries in South Asia and the IAB global average. In addition to the procedures required of a domestic firm, a foreign company must authenticate the documents of the parent company in its country of origin. A company engaged in international trade must also obtain an Importer/Exporter Code issued by the Director General of Foreign Trade. Investment approvals are required for investments in certain sectors. For manufacturing, however, FDI is permissible under the automatic route without prior approval from the government. Foreign companies must comply with reporting requirements mandated by the Foreign Exchange Management Act, notify the regional office of the Reserve Bank of India within 30 days of receipt of inward remittances, and file the required documents with that office within 30 days of issuing shares to foreign investors. Companies in India are allowed to open and maintain a foreign currency account (Exchange Earners Foreign Currency Account) with an authorized dealer. The minimum capital requirement for foreign and domestic companies is INR 100,000 (~$2,230), which must be paid in upon incorporation.

In Mumbai, leasing private or public land is the most common means for foreign companies to acquire land. Leasing public land is a lengthy process that may require several negotiations with the relevant public authorities. Since ownership is easy to ascertain for publicly held land, the process of due diligence is easier. Most publicly held land is leased or bought through a public auction. Such land may have restrictions on its use and transfer. Foreign companies must have permission from the Reserve Bank of India to lease land for more than 5 years. Lease contracts can be for a maximum duration of 99 years, and can offer the lessee the right to subdivide, sublease, or mortgage the leased land, subject to the terms of the lease contract. Investors face a major challenge in acquiring land-related information. There are currently efforts underway, however, to implement a National Land Records Modernization Program (NLRMP) that includes computerization and digitalization of land records and maps.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration and Conciliation Act (1996) governs domestic and international arbitrations in India. Moreover, certain federal acts and acts enacted by different Indian states have mandatory statutory arbitration provisions. The 1996 Act is based on the UNCITRAL Model Law. Although it does not include a definition of domestic arbitration, it states that any award made when the place of arbitration is in India will be considered a domestic award. There are no notable differences between domestic and international arbitration. Arbitration agreements must be in writing. Most commercial disputes can be submitted to arbitration, but there are certain exceptions, such as the nonpayment of admitted debt or income tax, and industrial disputes. Parties are free to select arbitrators of any gender, nationality, or professional qualifications in both domestic and international arbitrations. However, only licensed practitioners may represent parties as advocates in arbitration proceedings. There are several arbitral institutions in India, including the Indian Council of Arbitration in New Delhi. Institutional arbitrations are slowly gaining momentum, although parties still tend to prefer ad hoc proceedings. Indian courts are able to assist arbitration proceedings with interim relief. Decisions enforcing or denying enforcement of arbitration awards may be appealed to the Mumbai High Court and the Supreme Court of India. On average, it takes around 33 weeks to enforce an arbitration award rendered in India, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 43 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

116

Investing Across Borders 2010

Indonesia IAB global average (87 countries)

IAB regional average (10 countries)

Country score

Indicators

East Asia and the Pacific

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 97.5 75.7 92.0 Agriculture and forestry 72.0 82.9 95.9 Light manufacturing 68.8 86.8 96.6 Telecommunications 57.0 64.9 88.0 Electricity 95.0 75.8 87.6 Banking 99.0 76.1 91.0 Insurance 80.0 80.9 91.2 Transportation 49.0 63.7 78.5 Media 5.0 36.1 68.0 Sector group 1 (constr., tourism, retail) 85.0 91.6 98.1 Sector group 2 (health care, waste mgt.) 82.5 84.1 96.0

The majority of the 33 industry sectors covered by the Investing Across Sectors indicators are subject to overt statutory ownership restrictions in Indonesia. Presidential Regulations No. 77 and No. 111 of 2007 contain a list of sectors that are closed to foreign equity and impose further limitations on foreign capital participation in additional industries. Sectors such as publishing and newspaper businesses are closed to foreign equity ownership. In several other sectors, including forestry, fixed-line telecommunications, and transportation, foreign ownership is limited to a less-than-50% stake. Further sectors, such as the pharmaceutical industry, financial services, construction, and health care, are subject to foreign equity limits, but foreign investors are allowed to obtain a majority stake.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

52.6

57.4

64.5

78.6

84.9

82.1

n/a

83.3

92.2

21.4

35.1

41.3

85.0

67.5

70.6

It takes 12 procedures and 86 days to establish a foreign-owned limited liability company (LLC) in Jakarta, Indonesia. This is slower than both the IAB regional average for East Asia and the Pacific and the IAB global average. In addition to the procedures required of domestic companies, foreign companies must translate and notarize the documents of the parent company in its country of origin. Foreign investors must then file for a foreign investment license from the Investment Coordination Board (BKPM). This license must be obtained before the company deed is executed, and takes on average 14 days. If declined, the foreign investor can submit an appeal to the State Administrative Court (Pengadilan Tata Usaha Negara or PTUN). In addition, foreign companies must obtain a Limited Importer Registration Number (Angka Pengenal Importir Terbatas or APIT) to engage in international trade. The deed of establishment must be made before a notary public. The company registration process is not yet available online. Foreign companies are free to open and maintain bank accounts in foreign currency. The minimum paid-in capital requirement for a domestic LLC is IDR 12,500,000 (~$1,380), whereas for a wholly foreign-owned LLC, it depends on the business sector and the projected sales target.

Time to lease public land (days)

151

140

95.4

83.8

85.2

81.8

66.1

70.6

41.3

46.6

57.9

In Indonesia, land ownership is prohibited for non-Indonesian citizens. Foreign companies may lease land under certain use titles. These include land under the right to use with a 25-year period; land under the right to build with a 30-year period; and land under the right to cultivate with a 35-year period. These lease periods may be extended for a similar amount of time in most instances. Not all land in Indonesia is registered with the Land Office and thus a thorough due diligence process is necessary to ascertain the landowner. It is not mandatory to register leases. Leases can offer the lessee the right to subdivide or sublease the leased land as well as to mortgage it or use it as collateral, subject to the terms of the lease contract. There are generally no restrictions on the amount of land that may be leased, though in some cases, especially for industrial activity, location permits may limit the land available for lease to 50 hectares. Land-related information may be found in the land registry and cadastre. They are not linked or coordinated to share data.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Law No. 30 (1999) covers arbitration and alternative dispute proceedings, although it does not specifically refer to commercial arbitration. The law stipulates that trade disputes can be settled through arbitration. The law makes no distinction between domestic and international arbitration. Indonesian Civil Procedural Law, which was adopted under Dutch colonial rule, is also still in force and contains measures related to arbitration. An arbitration agreement cannot be concluded orally and a record of receipt must accompany it. If the arbitration agreement is concluded after a dispute has arisen, there are requirements set out in the law that the agreement must comply with. If the parties do not specify the language of the arbitration proceedings, the default language is Indonesian. Arbitrators must fulfill certain requirements, including being at least 35, and having at least 15 years of experience in the field. The parties can designate any arbitral institution or rules, provided that they do not conflict with the mandatory provisions of the arbitration law. Failing this, the law sets out procedural rules that can be used. There is no appeal to a decision enforcing an arbitration award, although a decision denying enforcement may be appealed. The court may only execute a domestic award if it meets the requirements set out in the arbitration law. On average, it takes around 22 weeks to enforce an arbitration award rendered in Indonesia or in a foreign country, from filing an application to a writ of execution attaching assets (assuming there is no appeal).

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

117

Ireland IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 100.0 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 100.0 93.8 96.6 Telecommunications 100.0 89.9 88.0 Electricity 100.0 88.0 87.6 Banking 100.0 97.1 91.0 Insurance 100.0 100.0 91.2 Transportation 79.6 69.2 78.5 Media 100.0 73.3 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 91.7 96.0

Among the high-income OECD countries covered by the Investing Across Sectors indicators, Ireland is among the most open to foreign equity ownership. All major sectors of its economy, with the exception of domestic and international air transportation, are fully open to foreign capital participation. Like the other member states of the European Union, Ireland limits foreign ownership in the air transportation sector to 49% for investors from outside of the European Economic Area (EEA). Foreign capital participation is not restricted in the electricity transmission and distribution sectors, but these are primarily publicly owned enterprises with a monopolistic market structure. This fact, together with a high perceived difficulty of obtaining the required operating license, makes it difficult for foreign companies to engage in these sectors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

70.0

77.8

64.5

92.9

92.2

82.1

100.0

92.2

50.0

52.5

41.3

100.0

84.2

70.6

Time to lease private land (days)

Time to lease public land (days)

140

94.9

94.2

85.2

79.6

83.3

70.6

75.8

77.6

57.9

It takes 5 procedures and 14 days to establish a foreign-owned limited liability company (LLC) in Dublin, Ireland. This is one of the simplest and shortest processes among the IAB high-income OECD countries. A foreign company that wants to engage in international trade must obtain a trade license from the Department of Enterprise, Trade and Employment once the subsidiary has been incorporated. Registering the subsidiary with the Companies Registration Office using their CRO Disk system, an electronic company incorporation scheme, will reduce this procedure time from 10 days to 5. To access the CRO Disk system, the company founder must apply to the CRO for an access number and have the memorandum and articles of association approved in advance. No investment approval is required. Foreign companies are free to open and maintain bank accounts in foreign currency. The minimum paid-in capital requirement in Ireland is a symbolic 1.

Leasing privately held land is the most common way that foreign companies acquire land in Ireland. Publicly held land may be leased through the Industrial Development Authority of Ireland. It is also possible to buy privately or publicly held land. The process of acquiring land does not differ much for foreign and domestic companies. The registration of leases is not compulsory. Lease contracts can be of unlimited duration, but the usual duration is about 25 years. The lease contract can offer the lessee the right to subdivide, sublease, or mortgage the leased land, subject to the terms of the contract. Statutory provisions govern the renewal of leases. In Dublin, the land registry and registry of deeds have been combined to form the Property Registration Authority. Most land-related information for land that has been registered can be found here. Currently, there are several reforms underway to simplify the process of transferring land and making land-related information available to the public.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration Acts (1954 and 1988) govern domestic arbitrations in Ireland, and are based on the English Arbitration Act (1950). The International Commercial Arbitration Act (1998) governs international arbitrations in Ireland. The 1998 act adopts the UNCITRAL Model Law in its entirety and without modification, although the Irish High Court retains supervisory powers to order security for costs, preservation of property, and the examination of witnesses outside the jurisdiction. Accordingly, the rules for domestic and international arbitration currently diverge greatly. The Arbitration Bill (2008) was not yet law at the time of data collection, but it will adopt the UNCITRAL Model Law and apply it uniformly to all arbitrations taking place in Ireland. Parties are free to appoint arbitrators of any nationality, gender, or professional qualifications. Moreover, they are able to use any arbitral institution of their choice. There are several institutions in Ireland, including international institutions such as the ICC. The law provides for courts to assist the arbitration process by granting interim relief, although such assistance, in practice, is rarely sought. On average, it takes around 19 weeks to enforce an arbitration award rendered in Ireland, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 18 weeks for a foreign award. Appeals can be made to the High Court or Supreme Court. If the award is over 1,000,000, the parties can apply for the case to be heard by the commercial division of the High Court, which would shorten the process.

For more information on this country, please go to http://www.investingacrossborders.org

118

Investing Across Borders 2010

Japan IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 100.0 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 100.0 93.8 96.6 Telecommunications 83.3 89.9 88.0 Electricity 100.0 88.0 87.6 Banking 100.0 97.1 91.0 Insurance 100.0 100.0 91.2 Transportation 39.8 69.2 78.5 Media 60.0 73.3 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 50.0 91.7 96.0

Of the 33 sectors measured by the Investing Across Sectors indicators, 26 are fully open to foreign capital participation in Japan. While the manufacturing and primary industries are fully open to foreign equity ownership, Japan imposes ownership restrictions on a number of service sectors. For example, the Japanese Radio Law limits foreign capital participation in companies providing wireless/mobile telecommunications infrastructure to a less-than-33% stake. Similarly, foreign ownership in the domestic railway freight transportation sector is restricted to a maximum of 33%, pursuant to the Cargo Forwarder Service Act. Foreign ownership of nationwide television channels is limited to a maximum of 20%. The port operation and health care sectors are closed to private investment, either foreign or domestic. All port facilities in Japan are owned and operated by publicly owned enterprises. Only individuals or nonprofit organizations may operate hospitals and clinics.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

81.6

77.8

64.5

85.7

92.2

82.1

100.0

92.2

30.8

52.5

41.3

75.0

84.2

70.6

17 96

50 88

61 140

95.4

94.2

85.2

77.7

83.3

70.6

65.9

77.6

57.9

It takes 10 procedures and 25 days to establish a foreign-owned limited liability company (LLC) in Tokyo, Japan. This process is in line with the IAB high-income OECD countries average and faster than the IAB global average. The 3 additional procedures required exclusively of foreign companies add only 3 days to the establishment process. A foreign enterprise must notarize the parent companyâ&#x20AC;&#x2122;s documents (company register and signature certificate) in its country of origin. In addition, a foreign company must make a post facto investment declaration to the Bank of Japan for statistical purposes. If the nationality of the parent company does not qualify it for an automatic investment, approval is required before the subsidiary can be established. A prior filing requirement applies if the foreign investment is made in certain protected industries that are considered key to the economic and national security of Japan, as stipulated in Article 27 of the Foreign Exchange and Foreign Trade Act (Foreign Exchange Act). Foreign investors are subject to a waiting period while the government conducts its review of the investment (30 days, which can be shortened to 14 days, and in certain cases, 5 days according to a recent amendment of the Foreign Exchange Act). Business registration is possible online and submission forms are available for download. Foreign-owned subsidiaries are free to open and maintain bank accounts in foreign currency in Japan. However, they must report to the Bank of Japan if they have overseas deposits of more than JPY 100,000,000 (~ $1,000,000). The minimum paid-in capital requirement in Japan is a symbolic JPY 1.

In Japan, foreign companies have the option to lease or buy privately or publicly held land. In order to lease public land, the prospective lessee must meet certain statutory requirements and the relevant public authority must agree to lease the land. In most cases, public land is sold through a public auction. There are no restrictions on the amount of land that may be leased. The maximum legal duration of lease contracts is unlimited. The usual duration of most leases is 30 years. The lease contract can offer the lessee the right to sublease and/ or mortgage the leased land, subject to the terms of the contract. Registration of leases is not mandatory. Although registration is not required for a lease to be valid, it is enforceable against a third party only if it has been registered. Most land-related information may be obtained from the land registry, geographic information system (GIS), or land information system (LIS).

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration Law No. 138/2003 governs arbitration in Japan. It is modeled substantially on the UNCITRAL Model Law, although it does not specifically apply to international commercial arbitration. Unlike the Model Law, it allows domestic courts, with the partiesâ&#x20AC;&#x2122; consent, to attempt a settlement. There is no distinction between domestic and international arbitration in the law. Rather, it focuses on whether the seat of arbitration is in Japan or not. Unless provided otherwise by statute, only civil matters that are capable of being settled may be submitted to arbitration. Parties are free to appoint arbitrators of any nationality, gender, or professional qualifications. Since 1996, a foreign lawyer may represent the parties only if the principal place of business for the disputing party seeking representation is in a foreign country and the lawyer is retained in that country. Arbitration awards in Japan have the same effect as final and conclusive court judgments, and the enforceability of such awards is guaranteed under the Arbitration Law. On average, it takes around 19 weeks to enforce an arbitration award rendered in Japan, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 21 weeks for a foreign award. This estimate may not be accurate, given the insufficient practice of arbitration in Japan. Culturally, Japan is more prone to mediation than arbitration. The Japanese government rarely uses arbitration as a dispute resolution mechanism in its contracts.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

119

Kazakhstan IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 49.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 100.0 84.0 78.5 Media 20.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Kazakhstanâ&#x20AC;&#x2122;s limits on foreign equity ownership are higher than in most other countries in Eastern Europe and Central Asia region covered by the Investing Across Sectors indicators. The Mass Media Law limits foreign ownership of companies in newspaper publishing and television broadcasting to a maximum share of 20%. Foreign capital participation in the telecommunications sector (including fixed-line and wireless/mobile infrastructure and services) is limited to a less-than-50% stake. In addition to these overt ownership restrictions, the law requires prior approval from the Kazakh government of any transaction involving assets in industries deemed as â&#x20AC;&#x153;strategic objectsâ&#x20AC;?. The Civil Code specifies that such strategic objects include trunk oil pipelines, railway networks, international airports, and entities that directly or indirectly own such assets. An exhaustive list is provided in the List of Strategic Objects (June 30, 2008), approved by the government of the Republic of Kazakhstan. This approval is required for both foreign and domestic investors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

65.8

76.8

64.5

86.7

82.9

82.1

66.7

97.6

92.2

36.8

50.3

41.3

95.0

78.9

70.6

37 159

43 133

61 140

77.5

82.5

85.2

70.4

69.7

70.6

78.2

64.4

57.9

It takes 9 procedures and 34 days to establish a foreign-owned limited liability company (LLC) in Kazakhstan (Almaty). This is a little longer than the IAB regional average for Eastern Europe and Central Asia, but still faster than the IAB global average. In addition to the procedures required of a domestic enterprise, a foreign company establishing a subsidiary in Almaty must authenticate the documents of the parent company abroad and register the capital contribution to the charter capital of the new company with the National Bank of Kazakhstan within 10 business days of registration. A foreign-owned company registered in Kazakhstan is considered a domestic company for Kazakhstan currency regulation purposes. Under the Law on Currency Regulation and Currency Control, residents may open bank accounts in foreign currency in Kazakh banks without any restrictions. However, companies wishing to open a bank account in a foreign bank outside of Kazakhstan must notify the National Bank of Kazakhstan within 30 calendar days of the agreement with the foreign bank. Investors must pay at least 25% of the charter capital prior to state registration with the local branch offices of the Ministry of Justice. The contribution must not be less than the minimal amount of charter capital (100 times the monthly assessment index: KZT 127,300 or ~$850).

It is not possible for foreign companies to buy land in Kazakhstan. They can, however, lease both publicly and privately held land. It is possible to lease land under a long-term lease, with a duration between 5 and 49 years. The process of leasing publicly held land may be time-consuming and unpredictable. The registration process is also lengthy, although a fast-track registration procedure was introduced in 2009, which seeks to reduce the registration period to 2 or 3 days. The maximum duration set by the law for leases of publicly held land is 49 years; for privately held land there is no limit. Lease contracts can offer the lessee the right to subdivide, sublease, mortgage the leased land, or use it as collateral. This, however, does not apply to most publicly held land. Land-related information can be obtained from the land registry and cadastre. These agencies are not located in the same agency nor are they linked or coordinated to share data.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Arbitration in Kazakhstan is governed by the 2004 Law on Arbitration Tribunals for domestic arbitration, and the Law on International Commercial Arbitration (2004). Under the latter law, arbitration is considered international only if at least 1 of the parties is a nonresident of Kazakhstan. The 2 laws are very similar. Commercial disputes can generally be resolved through arbitration, except for those related to real estate in Kazakhstan, disputes involving interests of the state or state enterprises, disputes arising from contracts with monopolistic entities or those dominating the market, intra-company and shareholder disputes, and those related to transportation agreements or bankruptcy. The law requires arbitrators to be at least 25 years old, and to have higher legal education and 2 years of legal work experience. There are no restrictions on the nationality of the arbitrators. Parties may appoint foreign lawyers to represent them in arbitration proceedings. Awards issued by foreign arbitral institutions in relation to a dispute between 2 Kazakh companies are not enforceable in Kazakhstan. The Almaty Specialized Interdistrict Economic Court has jurisdiction to enforce arbitration awards. On average, it takes around 5 weeks to enforce an arbitration award rendered in Kazakhstan, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 5 weeks for a foreign award. Foreign arbitration awards are recognized on the basis of reciprocity and courts have authority to review them.

For more information on this country, please go to http://www.investingacrossborders.org

120

Investing Across Borders 2010

Kenya IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 70.0 84.1 88.0 Electricity 92.9 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 66.7 87.3 91.2 Transportation 70.0 86.6 78.5 Media 75.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Among the countries in Sub-Saharan Africa covered by the Investing Across Sectors indicators, Kenya restricts foreign ownership in more sectors than most other economies. Foreign capital participation in telecommunications is limited to a maximum of 70%. However, the law provides foreign investors with a grace period of 3 years to build up the required domestic capital contribution of 30%. In the transportation sector, there are ownership restrictions in railway freight, port and airport operation, in which foreign investment is allowed only up to 50%. On the other hand, unlike in most other countries covered by the Investing Across Sectors indicators, domestic as well as international passenger air transportation is fully open to foreign capital participation. The tourism sector, one of the country’s most prosperous industries, is fully open to foreign companies as well, as are other manufacturing and primary sectors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

57.9

51.5

64.5

78.6

76.6

82.1

100.0

77.3

92.2

22.2

33.9

41.3

85.0

58.5

70.6

72 113

72 151

61 140

94.9

82.4

85.2

77.1

73.8

70.6

56.3

55.9

57.9

With no additional procedures specifically required of foreigners, it takes as long to establish a domestic enterprise as a foreign-owned limited liability company (LLC) in Kenya (Nairobi). This process (34 days and 12 procedures) is faster than both the regional average for the IAB countries in Sub-Saharan Africa and the global IAB average. In addition, obtaining an Investment Certificate from the Kenya Investment Authority (for investments of $100,000 and more) helps speed up the administrative start-up procedures, including the provision of various work permits. The Investment Certificate is valid for a 12-month period and consolidates the requisite health, safety, and environment licenses into one. During this period, the foreign investor is permitted to begin operations and apply for all the general and sector-specific licenses. The Advocates Act requires that an advocate of the High Court of Kenya prepare and submit the incorporation documentation. There is no minimum capital requirement and investors are allowed to hold foreign currency bank accounts.

In Nairobi, the process of leasing land is governed by several laws that deal with the registration and disposition of interests in land. Only companies that are 100% domestically owned can acquire land controlled under the Land Control Act, such as agricultural land. Nonetheless, foreign companies seeking to access land in Kenya have the option to lease or buy land from private and public landholders. Commercial leases cannot be issued for a period of less than 5 years and lease contracts can be as long as 999 years. Lease contracts can offer the lessee the right to subdivide, sublease, and mortgage the leased land. Land-related information can be found in the land registry and cadastre, which are located in different agencies and are not linked or coordinated to share data. Most of the relevant data related to land is available, in principle, but it may be a time-consuming process to obtain the information, as it requires dealing with several different authorities.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Kenya’s Arbitration Act (1996) is closely based on the UNCITRAL Model Law. The Act applies to domestic and international arbitration, and there is no difference in treatment between the 2 arbitration regimes. Additional provisions regulating arbitration are found in Chapter 21 of Kenya’s Civil Procedure Act (2009) and in its Civil Procedure Rules. Kenya has 2 principal arbitral institutions: the Chartered Institute of Arbitrators and the Dispute Resolution Centre (Nairobi). There are no legal restrictions on the disputing parties’ ability to organize the arbitration proceedings as they see fit. Despite Kenya’s strong legal framework, there are problems with the length of arbitration proceedings and the enforcement of arbitration awards. Arbitration takes one year and 7 months on average, from the filing of an application of enforcement to the final writ of execution attaching assets. The domestic court process is slow, which can further impede the efficacy of judicial assistance in arbitrations. On average, it takes around 35 weeks to enforce an arbitration award rendered in Kenya, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 43 weeks for a foreign award. Practitioners state that arbitrations are not common in Kenya. Mediation is starting to be used as a dispute resolution technique, and on average, mediation cases are settled within 30 days.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

121

Korea, Rep. IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 100.0 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 100.0 93.8 96.6 Telecommunications 49.0 89.9 88.0 Electricity 85.4 88.0 87.6 Banking 100.0 97.1 91.0 Insurance 100.0 100.0 91.2 Transportation 79.6 69.2 78.5 Media 39.5 73.3 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 91.7 96.0

Among the 12 high-income OECD countries covered by the Investing Across Sectors indicators, foreign equity ownership restrictions are relatively stringent in the Republic of Korea. The country imposes restrictions in 10 of the 33 sectors covered by the indicators, all of which are service sectors. In particular, foreign capital participation is limited to a less-than-50% stake in the telecommunications sectors (fixed-line and wireless/mobile). Electricity transmission and distribution are also subject to a foreign ownership restriction of a maximum of 49% and are currently operating under monopolistic market structures with a dominating publicly owned enterprise. In the media sectors, foreign ownership is limited to a maximum of 30% for companies publishing daily newspapers (for weekly papers, the respective threshold is set at 50%) and to a maximum of 49% for terrestrial and cable television companies. For television companies broadcasting satellite channels, foreign capital participation is limited to a maximum of 33%. The Korean Aviation Act restricts foreign ownership in the domestic and international air transportation sectors to a less-than-50% stake.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

71.1

77.8

64.5

85.7

92.2

82.1

100.0

92.2

68.4

52.5

41.3

70.0

84.2

70.6

Time to lease private land (days)

Time to lease public land (days)

140

94.9

94.2

85.2

81.9

83.3

70.6

70.2

77.6

57.9

The process of establishing a foreign-owned subsidiary in Korea (Seoul) is faster than both the IAB regional average for high-income OECD countries and the IAB global average. In addition to the procedures required of a domestic enterprise, a foreign company establishing a subsidiary in Seoul must provide an apostille or notarized copy of the incorporation documents of the parent company abroad. Foreign investors must also prepare foreign investment reports prior to their investment in Korea, pursuant to the Foreign Investment Promotion Act of Korea (FIPA). This report is filed with a foreign exchange bank designated by the Ministry of Finance and Economy or the Korea Trade Investment Promotion Agency (KOTRA), and takes only 1 day. In addition, a foreign investor must report to the Ministry of Commerce, Industry, and Energy in advance, if intending to transfer capital goods. The business registration application with the corporate commercial registry is a simple procedure and should be completed within 1.5 business days. Companies can download business registration documents online. Foreign companies are free to open and maintain bank accounts in foreign currency. The minimum capital required at the time of incorporation in order to qualify as foreign direct investment under FIPA is KRW 50,000,000 (~$44,336).

It is not common for foreign companies to lease public land. This is due to the relative complexity of the procedures and legal restrictions under the relevant laws and regulations. Most foreign companies usually lease or buy private land. Registering leases is not mandatory. However, if the lessee wishes to enforce its rights against a third party, the lease must be registered. Under the Foreignerâ&#x20AC;&#x2122;s Land Acquisition Act of Korea, a foreign company must file a report with the relevant authority when it acquires land in Korea. Publicly held land is usually sold through a public auction. The maximum lease duration for private land is unlimited; for publicly held land the maximum duration is 50 years. Lease contracts of privately held land can offer the lessee the right to subdivide, sublease, or mortgage the leased land or use it as collateral, subject to the terms of the contract. Land-related information can be found in the land registry and cadastre, which are linked and coordinated to share data.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration Act was enacted in 1966, and was subsequently amended by Act No. 6083/1999. The amended Arbitration Act incorporates the UNCITRAL Model Law and applies to both domestic and international arbitrations. There are no definitions of domestic or international arbitration in the legislation. The Korea Arbitration Board, which administers arbitrations, defines domestic arbitration as arbitrations where the partiesâ&#x20AC;&#x2122; permanent residency or primary place of business is in Korea. Commercial matters are generally arbitrable, although there are restrictions on submitting to arbitration disputes that affect third-party rights, insolvency matters, patents and trademarks, or anti-trust law. Arbitration agreements must be in writing. Parties are free to appoint arbitrators of any nationality, gender, or professional qualifications. Under the Attorney-at-Law Act, a foreign attorney who is not qualified to practice law in Korea may not represent parties in arbitration proceedings, and may face criminal sanctions if he or she does so. Online arbitration is not available in Korea, although the Korean Commercial Arbitration Board is considering it. Korean courts are empowered to assist and support arbitration proceedings, but, in practice, such assistance is not often sought. On average, it takes around 25 weeks to enforce an arbitration award rendered in Korea, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 23 weeks for a foreign award. Appeals can be made to the Seoul High Court or Supreme Court.

For more information on this country, please go to http://www.investingacrossborders.org

122

Investing Across Borders 2010

Kosovo IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 90.0 84.0 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Kosovo is one of the most open countries to foreign equity ownership in Eastern Europe and Central Asia. The Law on Foreign Investments grants foreign and domestic investors equal rights to ownership of local companies, following the principle of national treatment. With the exception of railway freight transportation, all other sectors measured by the Investing Across Sectors indicators are fully open to foreign equity ownership. While a number of sectors are still dominated by publicly owned enterprises, such as electricity transmission and distribution, waste management, and airport operations, legal provisions have been made to open up these sectors either to private greenfield investment or privatization.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

73.7

76.8

64.5

85.7

82.9

82.1

100.0

97.6

92.2

47.4

50.3

41.3

65.0

78.9

70.6

It takes 54 days and 11 procedures to establish a foreign-owned limited liability company (LLC) that wants to engage in international trade in Kosovo (Pristina). The Law on Business Organization stipulates that 10 days from the date of application companies are considered registered with the Kosovo Business Organization Register unless they hear otherwise. The principle of silent consent for business registration eases the process for investors, although automation would further improve the system. The requirement for a municipal license (30 days), however, is burdensome. Foreign investors do not need an investment approval. There is a minimum capital requirement of €1,000 and the company’s charter capital must be paid in within 14 days of registration. Until the company provides the registry with evidence of payment, it may not engage in business activity in Kosovo. Natural and legal persons are entitled to open bank accounts in a foreign currency.

Time to lease public land (days)

133

140

74.9

82.5

85.2

63.9

69.7

70.6

27.5

64.4

57.9

Most foreign companies prefer to lease public land. Other available options include leasing private land and buying privately and publicly held land. The purchase of private land is relatively expensive compared with publicly held land and requires a more extensive due-diligence process. Nonetheless, the process of leasing private land is streamlined and extremely fast compared with the regional or global average. Leases of public municipal land require central government approval only if they are for more than 10 years. Lease contracts can be of unlimited duration and can offer the lessee the right to subdivide, sublease, and mortgage the leased land. There are no restrictions on the amount of land that may be leased. The process of acquiring land-related information is less burdensome than in most countries in the region. Pristina has both a land registry and a cadastre located in the same agency. They are not linked or coordinated to share data, however. Reforms are currently underway to make them electronic, thus making it easier to obtain land-related information.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

In 2008 Kosovo enacted a Law on Arbitration that does not define terms such as “arbitration,” “commercial,” “international,” and “scope of application of the law.” Disputes involving immovable property, privatizationrelated matters, and creditor’s claims against a corporation are not arbitrable. An arbitration agreement is only valid if concluded in writing. The law does not establish any specific requirements regarding the selection of arbitrators, but they must be an odd number. There are no provisions regarding the confidentiality of arbitration proceedings. There is not yet an established arbitral institution in Kosovo, and arbitration practice is therefore currently lacking. The law designates the Economic Court of Pristina (higher-level court) to enforce arbitration awards, but there has not yet been any court practice. The country has not yet ratified the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards or the ICSID Convention. Given the lack of practice on the ground, private practitioners were unable to estimate the length of time to enforce an award, whether rendered in Kosovo, or in a foreign country.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

123

Kyrgyz Republic IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 79.6 84.0 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Compared with the other economies in Eastern Europe and Central Asia covered by the Investing Across Sectors indicators, the Kyrgyz Republic is one of the more open countries to foreign capital participation. With the exception of the domestic and international air transportation sectors, in which foreign ownership is limited to a maximum of 49%, all other sectors measured by the indicators are fully open to foreign capital participation. Kyrgyz legislation provides for equal treatment of domestic and foreign investors with respect to ownership of local companies.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

73.7

76.8

64.5

91.2

82.9

82.1

n/a

97.6

92.2

55.6

50.3

41.3 70.6

It takes 4 procedures and 12 days to establish a foreign-owned limited liability company (LLC) in the Kyrgyz Republic (Bishkek), making it one of the faster processes in the Eastern Europe and Central Asia countries covered by Investing Across Borders. An LLC in the Kyrgyz Republic needs a minimum of 2 shareholders. In addition to the 3 procedures also required of domestic companies, the only additional procedure required of foreign companies is to submit a legalized excerpt from the trade registry of its country of origin certifying that it is duly incorporated and in good standing. The Kyrgyz Republic is not party to the Hague Convention, but since September 2009 the legislative authority is considering a resolution on accession to said convention. Companies are registered at the one-stop shop at the Ministry of Justice. The April 2009 amendments to the Civil Code stipulate that registration must be done in 3 days. The one-stop shop interacts electronically with all agencies. Companies in the Kyrgyz Republic are free to open and maintain bank accounts in foreign currency. There is no minimum capital requirement, although the authorized capital stipulated in the constitutive documents must be paid in full within the first year of the companyâ&#x20AC;&#x2122;s operation.

82.5

78.9

Time to lease private land (days)

Time to lease public land (days)

154

133

140

74.9

82.5

85.2

72.3

69.7

70.6

61.7

64.4

57.9

Foreign companies seeking to acquire land in the Kyrgyz Republic have the option to lease privately or publicly held land. The land code prohibits the purchase of land by foreign companies, with the exception of foreign companies involved in mortgage financing. Publicly held land may be leased only within the boundaries of settlement centers, provided consent has been granted by the relevant public authority. The land may be leased through an auction or tender process or through direct negotiations with the relevant public authority. The maximum duration of lease contracts is 50 years. The lease contract offers the lessee the right to subdivide, sublease, or mortgage the leased land or use it as collateral, subject to the terms of the contract. Land-related information can be found in the land registry and cadastre, which are located in different agencies and are not linked or coordinated to share data. There is no land information system (LIS) or geographic information system (GIS) in place that centralizes relevant information at a single point of access.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Law on Arbitration Courts in the Kyrgyz Republic (2002) does not distinguish between domestic and international arbitration. All commercial disputes are generally arbitrable, unless a special law grants exclusive jurisdiction to the courts. There are no nationality restrictions on arbitrators. The law mandates that arbitrators must have certain qualifications, however. A sole arbitrator must be a qualified lawyer, and in the event of an arbitral tribunal, at least the chairman must be a qualified lawyer. The law requires arbitrators to be independent and impartial and to preserve the confidentiality of the proceedings. Parties may choose foreign counsel to represent them in arbitration proceedings in the Kyrgyz Republic. The only local arbitral institution is the International Court of Arbitration in affiliation with the Chamber of Commerce and Industry of the Kyrgyz Republic. There is reportedly no arbitration practice in the court, however. There are no legal provisions that state courts may assist arbitrators with orders of provisional measures or with the taking of evidence, and there is no court practice in that regard. The Interdistrict Court of Bishkek has jurisdiction to enforce arbitration awards. On average, it takes around 15 weeks to enforce an arbitration award rendered in the Kyrgyz Republic, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 16 weeks for a foreign award. Foreign arbitration awards are not enforced if their execution could be detrimental to the sovereignty of the Kyrgyz Republic, or threatens its security.

For more information on this country, please go to http://www.investingacrossborders.org

124

Investing Across Borders 2010

Liberia IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 100.0 84.1 88.0 Electricity 71.4 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 90.0 86.6 78.5 Media 100.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Of the 33 sectors covered by the Investing Across Sectors indicators, 30 are fully open to foreign equity ownership in Liberia. The only exceptions are the electricity transmission and distribution industries, which are closed to foreign capital participation, as is the port operation sector. All port and airport facilities in Liberia are currently owned and operated by a publicly owned company. All other sectors, including the primary sectors and media industry, which are restricted in many countries in Sub-Saharan Africa, are fully open to foreign ownership in Liberia.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

55.3

51.5

64.5

57.7

76.6

82.1

n/a

77.3

92.2

28.6

33.9

41.3

15.0

58.5

70.6

Time to lease private land (days)

Time to lease public land (days)

193

151

140

44.9

82.4

85.2

56.4

73.8

70.6

42.0

55.9

57.9

It takes 8 procedures and 25 days to establish a foreign-owned limited liability company (LLC) in Monrovia, Liberia. This is faster than both the IAB regional average for Sub-Saharan Africa and the IAB global average. A foreign company establishing a subsidiary in Monrovia must notarize the documents of the parent company abroad. Foreign companies must only obtain investment approval if they want to benefit from investment incentives. Otherwise, a mere notification to the National Investment Committee suffices. If the subsidiary is engaged in manufacturing and international trade, it must obtain a trade license; this can take 3 days. Liberia is one of the few countries surveyed by IAB that does not have its commercial laws and regulations publicly available online. Foreign investors must use a local counsel when establishing a subsidiary. There is no minimum paid-in capital requirement, except in regulated industries related to financial institutions, such as insurance and banking.

Foreign ownership of land is prohibited in Liberia. Foreign companies seeking to lease land in Liberia have the option to lease privately or publicly held land. Publicly held land is not readily available. The best option for foreign companies seeking to acquire land is thus to lease private land. Publicly held land is usually acquired through direct negotiations with the relevant public authority. Land may be leased for a maximum of 50 years, although the usual duration is about 21 years, with the option to renew. Lease contracts can offer the lessee the right to subdivide or sublease the land. The leased land cannot be mortgaged or used as collateral, unless the land has already been developed. Land-related information can be obtained from the registry. There is no cadastre, land information system (LIS), or geographic information system (GIS) available. The registry does not always have sufficient or current information and in most cases acquiring land-related information is a burdensome process involving different sources.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

There is no specific statute governing arbitration in Liberia. The Liberian Civil Procedure Law governs both domestic and international arbitrations taking place in Liberia. An arbitration agreement is not severable from the main contract; it can, however, be incorporated by reference. An arbitration agreement cannot be concluded by electronic communication, oral agreement, or conduct by one of the parties. The parties cannot elect to retain a foreign lawyer to represent them in either domestic or international arbitrations. The institution administering commercial arbitration in Liberia is the Liberian Chamber of Commerce. There are no legal provisions providing explicitly for the local courts to assist the arbitration process with the production of documents or the appearance of witnesses. The Liberian courts, especially the Supreme Court, have a clear pro-arbitration policy, favoring the enforcement of arbitration agreements and awards. It takes roughly 1.4 years to enforce both foreign and domestic arbitration awards, from the filing of an application to the court of first instance to obtaining a writ of execution, with provision for an appeal. Enforcement proceedings are undertaken in the Civil Law Court in Liberia, with appeals made directly to the Supreme Court. On average, it takes around 21 weeks to enforce an arbitration award rendered in Liberia, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 21 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

125

Macedonia, FYR IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 79.6 84.0 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

The former Yugoslav Republic of Macedonia has opened up the majority of the sectors of its economy to foreign investors. As a notable exception, legal ownership restrictions still exist in the domestic and international air transportation industries. As in most other countries in Eastern Europe and Central Asia, legislation in FYR Macedonia limits foreign ownership in these sectors to a maximum of 49%. A number of business sectors, such as electricity transmission, railway freight transportation, airport operation, and waste management, are still dominated by publicly owned enterprises. Those monopolies, together with a high perceived difficulty of obtaining required operating licenses, make it difficult for foreign companies to engage in these sectors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

76.3

76.8

64.5

85.6

82.9

82.1

100.0

97.6

92.2

68.4

50.3

41.3

90.0

78.9

70.6

Time to lease private land (days)

Time to lease public land (days)

133

140

93.1

82.5

85.2

74.9

69.7

70.6

69.7

64.4

57.9

The process of establishing a foreign-owned limited liability company (LLC) in FYR Macedonia is faster than both the IAB regional average in the Eastern Europe and Central Asia region and the IAB global average. It takes only 6 procedures and 8 days. A foreign company establishing a subsidiary in Skopje must authenticate the documents of the parent company abroad and must register the investment with the foreign direct investment registry in the Macedonian Central Registry within a year of registration. The company registration is done at a one-stop shop within the Central Registry and takes 1 day. Companies in FYR Macedonia are free to open and maintain bank accounts in foreign currency. There is a minimum capital requirement of MKD 310,000 (~$6,800) for foreign and domestic companies. In accordance with the Trade Company Law the amount must be paid in within a year of registration.

In FYR Macedonia, foreign companies may buy or lease privately or publicly held land, the latter subject to the consent of the Justice Minister. The most common way that foreign companies acquire land is through the lease of publicly held land. This land can be leased only through a public auction. Land can be leased for a maximum of 99 years. Lease contracts can offer the lessee the right to renew, subdivide, sublease, or mortgage the leased land or use it as collateral, subject to the terms of the contract. These rights may be restricted in the case of publicly held land. Publicly held land may not be transferred unless approval is sought from the relevant authority. Moreover, the land can only be transferred after it has been developed. Land-related information may be found in the registry and cadastre. However, there is no reliable source of information on land claims, since not all claims are necessarily registered in the cadastre. The registry and cadastre are not linked or coordinated to share data.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

FYR Macedoniaâ&#x20AC;&#x2122;s Law on International Commercial Arbitration (2006) applies to both national and international arbitrations taking place in FYR Macedonia. FYR Macedonia has also enacted a Law on Mediation (2006). All commercial disputes are arbitrable, except those involving rights over immovable property, aviation and ships, and bankruptcy. Arbitration is not often used as a method of dispute resolution, however. Parties are free to appoint arbitrators of any nationality or professional qualifications. The law requires the impartiality and independence of arbitrators and the confidentiality of the arbitration proceedings. Parties can choose to be represented by foreign lawyers in arbitration proceedings in FYR Macedonia. Parties to arbitration without an international element may only choose FYR Macedonia as the seat of arbitration. The arbitral tribunal or one of the parties can request legal assistance with the taking of evidence or enforcement of provisional measures from an authorized Macedonian court. Such requests are usually granted. Domestic arbitration awards are directly enforced by an enforcement agency (private executors), which takes around 15 weeks. A court of first instance in Skopje has jurisdiction to recognize and enforce foreign arbitration awards, which takes roughly 34 weeks (assuming there is no appeal).

For more information on this country, please go to http://www.investingacrossborders.org

126

Investing Across Borders 2010

Madagascar IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 74.5 84.1 88.0 Electricity 92.9 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 80.0 86.6 78.5 Media 100.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

The majority of the sectors covered by the Investing Across Sectors indicators are fully open to foreign equity ownership in Madagascar. However, the country imposes foreign ownership restrictions in a number of service sectors. Foreign ownership in the telecommunications infrastructure (both fixed-line and mobile/wireless), for example, is limited to a maximum of 66%. Furthermore, foreign capital participation in companies providing fixed-line telecommunication services is also limited to 66%. In addition to these restrictions, foreign equity ownership is limited in the electricity transmission sector as well as in the port and airport operation sectors. These industries are currently dominated by large publicly owned enterprises.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

65.0

51.5

64.5

84.5

76.6

82.1

75.0

77.3

92.2

26.3

33.9

41.3

85.0

58.5

70.6

It takes 3 procedures and 12 days to establish a foreign-owned limited liability company (LLC) in Madagascar (Antananarivo). This process is among the shortest in Sub-Saharan Africa and much faster than the IAB global average. An LLC can be entirely foreign-owned; investment authorizations are no longer required. However, at least one of its executives must reside in Madagascar. If a newly established company (domestic or foreign) wants to engage in international trade, it must register with the Ministry of Commerce and Trade. Companies can obtain their statistical card, tax registration confirmation, commercial registration number, and professional card at the one-stop shop. They must also register for social security and health insurance, which can be done through the Economic Development Board of Madagascar (EDBM)â&#x20AC;&#x2122;s one-stop shop. Companies in Madagascar are free to open and maintain bank accounts in foreign currency. Minimum capital requirements have been abolished.

Time to lease public land (days)

132

151

140

85.0

82.4

85.2

74.2

73.8

70.6

83.3

55.9

57.9

Foreign companies seeking to access land in Madagascar have the option to lease or buy land from both private and public owners. Foreign companies must have authorization from the Economic Development Board of Madagascar before buying land. Such authorization determines the amount of land that the purchaser is allowed to acquire. If the land exceeds 10,000 ha, further authorization is required from the relevant minister. Lease contracts can be of unlimited duration for privately held land. For publicly held land, lease contracts are limited to a renewable term of 50 years. Foreign companies may transfer the land, but will need authorization to transfer it to another foreign entity. Lease contracts can offer the lessee the right to sublease, subdivide, or mortgage the leased land or use it as collateral. Land-related information can be found in the registry and cadastre. However, these are not linked or coordinated to share data. Currently, there are efforts underway to modernize the land registry and cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Act 98-019 of December 15, 1998, and Articles 439 to 464 of the Civil Procedure Code (2003) govern domestic and international arbitrations in Madagascar. The Arbitration Act is based on the UNCITRAL Model Law. Most commercial disputes may be submitted to arbitration. However, domestic disputes involving the state, public authorities, and public establishments cannot be submitted to arbitration. Arbitration agreements must be in writing. The parties are free to select arbitrators of any gender, nationality, or professional qualifications in both domestic and international arbitrations and foreign counsel may represent the parties in arbitration proceedings. Parties are also free to choose any arbitral institution of their choice, including the Arbitration and Mediation Center of Madagascar (CAMM). Arbitration practice is limited in Madagascar, and foreign investors do not appear to have confidence in CAMM. Domestic courts have the power to declare an arbitral tribunal incompetent to settle a dispute. Enforcement proceedings for domestic awards take place in the competent court of first instance, and for international awards, in the Court of Appeal of Antananarivo. On average, it takes around 10 weeks to enforce an arbitration award rendered in Madagascar, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 12 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

127

Malaysia IAB global average (87 countries)

IAB regional average (10 countries)

Country score

Indicators

East Asia and the Pacific

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 70.0 75.7 92.0 Agriculture and forestry 85.0 82.9 95.9 Light manufacturing 100.0 86.8 96.6 Telecommunications 39.5 64.9 88.0 Electricity 30.0 75.8 87.6 Banking 49.0 76.1 91.0 Insurance 49.0 80.9 91.2 Transportation 100.0 63.7 78.5 Media 65.0 36.1 68.0 Sector group 1 (constr., tourism, retail) 90.0 91.6 98.1 Sector group 2 (health care, waste mgt.) 65.0 84.1 96.0

The majority of the 33 industry sectors covered by the Investing Across Sectors indicators are subject to overt statutory ownership restrictions in Malaysia. While the manufacturing sectors are fully open to foreign equity ownership, foreign capital participation is limited in the primary sectors and in particular in services sectors such as telecommunications and electricity. Foreign ownership in companies owning and operating telecommunications infrastructure (fixed-line and mobile/wireless) is limited to a maximum of 30%. In addition, the government may require infrastructure operators to transfer their assets to the state after their operating license expires. Foreign capital participation in companies providing telecommunications services (fixed-line and mobile/wireless) is limited to a maximum of 61%, with the requirement to reduce the share of foreign equity to 49% over a period of 5 years. In the electricity sector (generation, transmission, and distribution), foreign equity is generally allowed only up to a 30% stake.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

60.5

57.4

64.5

78.5

84.9

82.1

87.5

83.3

92.2

23.1

35.1

41.3

85.0

67.5

70.6

96 355

66 151

61 140

94.9

83.8

85.2

81.8

66.1

70.6

66.7

46.6

57.9

It takes 11 procedures and 14 days to establish a foreign-owned limited liability company (LLC) in Kuala Lumpur, Malaysia. This is faster than both the average for IAB countries in East Asia and the Pacific and the IAB global average. Two additional procedures are required of a foreign-owned company establishing a subsidiary in Kuala Lumpur. It must provide a notarized copy of the documents of the parent company abroad. And, if the foreign-owned company is engaged in manufacturing and has an initial capital investment of MYR 2,500,000 (~$778,930) or more, or plans on hiring 75 full-time employees, it must obtain a manufacturing license from the Malaysian Industrial Development Authority (MIDA). If the above assumptions do not apply, the foreign-owned company must apply for approval from the Foreign Investment Committee (FIC). Company registration documents are available online, but the submission process is not yet possible online. Foreign companies are free to open and maintain bank accounts in foreign currency. The minimum paid-in capital requirement for an LLC is MYR 2 (~ $0.62), unless a foreign company seeks to acquire immovable property, in which case the minimum paid-in capital requirement is MYR 250,000 (~$78,300).

In Malaysia, foreign companies may lease or buy privately or publicly held land, subject to certain restrictions. For example, the guidelines issued by the Foreign Investment Committee (FIC) stipulate that FIC approval is required for the acquisition of land if it affects native interests or involves a sale of more than MYR 20,000,000. Approval is not required in cases where the land will be used for industrial purposes. Publicly held land may be leased through direct negotiations with the relevant public authority. In most cases, additional approvals will be required from other public bodies, making the process relatively long compared with that for acquiring private land. Lease contracts can offer the lessee the right to renew, subdivide, sublease, or mortgage the leased land or use it as collateral, subject to the terms of the contract. In the case of publicly held land, approval is required from the Foreign Investment Committee (FIC). Land-related information may be found in the registry.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Malaysiaâ&#x20AC;&#x2122;s Arbitration Act was enacted in 2006 and applies to both international and domestic arbitration. Although its provisions largely reflect those of the UNCITRAL Model Law, there are some notable differences, such as the requirement that parties in domestic arbitration must choose Malaysian law as the applicable law, or that the number of arbitrations must be 3 for international arbitrations and 1 for domestic, unless otherwise agreed. While an arbitration agreement may be concluded by email or fax, it must be in writing: Malaysia does not recognize oral agreements or conduct as constituting binding arbitration agreements. The Kuala Lumpur Regional Centre for Arbitration (KLRCA) is the main arbitral institution and uses its own arbitration rules, which are based on the UNCITRAL Arbitration Rules (1976). The KLRCA, in conjunction with the Malaysian Network Information Centre, provides limited online dispute resolution services for Internet domain name disputes. Malaysia has ratified both the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the ICSID Convention. The courts in Malaysia have stated a general policy in favor of enforcing arbitration agreements and arbitration awards for arbitrations conducted in Malaysia. On average, it takes around 24 weeks to enforce an arbitration award, from filing an application to a writ of execution attaching assets (assuming there is no appeal).

For more information on this country, please go to http://www.investingacrossborders.org

128

Investing Across Borders 2010

Mali IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 95.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 100.0 84.1 88.0 Electricity 100.0 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 100.0 86.6 78.5 Media 49.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Of the 33 sectors covered by the Investing Across Sectors indicators, 30 are fully open to foreign equity ownership in Mali. The country imposes ownership restrictions on the mining and media sectors. Foreign capital participation in the mining industry is limited to a maximum of 90% by the Mining Act and foreign ownership of media companies (television broadcasting and newspaper publishing) is limited to a less-than-50% stake. While foreign capital participation in the electricity sector (generation, transmission, and distribution) is a public monopoly, thus presenting a potential obstacle for foreign investors to engage. A further public monopoly exists in the fixed-line telecommunications sector.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

42.5

51.5

64.5

80.0

76.6

82.1

50.0

77.3

92.2

28.6

33.9

41.3

5.0

58.5

70.6

.. 63

72 151

61 140

80.0

82.4

85.2

67.5

73.8

70.6

8.3

55.9

57.9

It takes 8 procedures and 29 days to establish a foreign-owned limited liability company (LLC) in Mali (Bamako). This is faster than both the IAB average for Sub-Saharan Africa and the IAB global average. In addition to the procedures required of a domestic company, a foreign company must declare its investment with the Ministry of Finance. Company registration is done at the one-stop shop and a government decree guarantees a turnaround time of a maximum of 3 days. According to a directive of the Economic Community of West African States (ECOWAS), companies in Mali are not allowed to open bank accounts in foreign currency unless they get approval from the Mali Ministry of Finance and the Central Bank of West Africa. This approval must be renewed yearly. The minimum capital requirement of XOF 1,000,000 (~$2,000) is applicable across all OHADA (Organization for the Harmonization of Business Law in Africa) member states. It must be paid in full for the incorporation of an LLC.

Foreign companies seeking to access land in Mali have the option to lease or buy land from private or public owners. The process of leasing publicly held land can be lengthy and unpredictable. Publicly held land is leased through a public auction. Since the length of the auction process is not definite, it may take from one month to close to a year to lease publicly held land. The maximum duration of the contract can be unlimited and can offer the lessee the right to sublease, subdivide, and/or mortgage the leased land. There are no restrictions on the amount of land that may be leased. Most land-related information can be acquired from the registry. There is no cadastre, land information system (LIS), or geographic information system (GIS) in place that centralizes relevant information at a single point of access.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Mali is a party to the OHADA Treaty (Organisation pour l’Harmonisation en Afrique du Droit des Affaires). Arbitration is therefore governed by the Uniform Act on Arbitration, which is based on the UNCITRAL Model Law. The act was signed on March 11, 1999 and entered into force 90 days later. The Uniform Act supersedes the existing national laws on arbitration. The principal arbitral institution under OHADA is the Common Court for Justice and Arbitration (CCJA) in Abidjan, Côte d’Ivoire. Mali has ratified the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards and the Washington Convention for the Settlement of Investment Disputes (ICSID). Due to the lack of practice, local legal practitioners were not able to estimate the time periods for enforcing an arbitration award, whether rendered in Mali, or in a foreign country.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

129

Mauritius IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 100.0 84.1 88.0 Electricity 100.0 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 100.0 86.6 78.5 Media 60.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Of the 33 sectors covered by the Investing Across Sectors indicators, 32 are fully open to foreign capital participation in Mauritius. The only exception is the TV broadcasting industry. According to the Independent Broadcasting Authority Act, foreign capital participation in TV broadcasting companies must be less than 20%. Moreover, the share of foreign members of the board of directors must not exceed 20%. In addition to these overt legal restrictions, sectors such as electricity transmission and distribution, waste management and recycling, and port and airport operation are characterized by monopolistic market structures, with one dominating publicly owned enterprise, making it difficult for foreign companies to invest.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

68.4

51.5

64.5

90.0

76.6

82.1

87.5

77.3

92.2

31.3

33.9

41.3

95.0

58.5

70.6

It takes 9 procedures and 11 days to establish a foreign-owned limited liability company (LLC) in Port Louis, Mauritius, faster than the IAB regional average for Sub-Saharan Africa and the IAB global average. In addition to the procedures required of domestic companies, the parent company must legalize and apostille its documents in the country of origin. If the capital invested is $10,000,000 or more (the investment is considered a “qualifying investment” under the Investment Promotion Act), the foreign company must apply to the Board of Investment for an investment certificate. This takes 3 days. A minimum projected annual turnover of more than MUR 3,000,000 (~ $99,330) is a prerequisite for the investment certificate. If a company wants to engage in international trade, it must register with customs authorities as an importer/exporter and get a trade license from the municipal council of Port Louis. Forms and information on company registration are downloadable online. The registration application can also be completed online. Companies are free to open and maintain bank accounts in foreign currency. There is no minimum capital requirement to establish foreign or domestic LLCs in Mauritius.

Time to lease public land (days)

100

151

140

84.9

82.4

85.2

71.2

73.8

70.6

77.1

55.9

57.9

Foreign companies seeking to access land in Mauritius may lease or buy privately or publicly held land. If the company seeks to hold the land for more than 20 years, it will require approval from the Board of Investment or the relevant minister. The sale of publicly held land is not common. Publicly held land is leased through a public auction. Land may be leased for a maximum of 99 years. Public leases granted for industrial or commercial purposes have a maximum duration of 60 years. The lease contract can offer the lessee the right to sublease, subdivide, and/or mortgage the leased land. If the lessee seeks to transfer the land to another foreign entity, consent is required from the relevant minister or the Board of Investment. Land-related information may be found at the Conservator of Mortgages’ Office. The Board of Investment has created a Property Acquisition and Management System that allows online submission and processing of applications to acquire property for business purposes.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Mauritius’s International Arbitration Act (2008) regulates only international arbitrations taking place within the country. Domestic arbitrations are governed by the Code de Procédure Civile. The arbitration law is available online. Most commercial disputes are arbitrable, except those involving bills of exchange. The law does not specifically stipulate that an arbitration agreement may be severable from the main contract. In practice, however, domestic courts have recognized this principle. Arbitration agreements must be in writing. The parties may appoint arbitrators of any nationality, gender, or professional qualifications for both domestic and international arbitrations. Only Mauritian lawyers, however, may represent parties in domestic arbitrations. The law does not require arbitrators to preserve confidentiality of arbitration proceedings in either domestic or international arbitrations. Arbitration awards are enforced in the Supreme Court, and decisions regarding enforcement can be appealed to the Judicial Committee of the Privy Council. On average, it takes around 16 weeks to enforce an arbitration award rendered in Mauritius, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 11 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

130

Investing Across Borders 2010

Mexico IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 50.0 91.0 92.0 Agriculture and forestry 49.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 74.5 94.5 88.0 Electricity 0.0 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 49.0 96.4 91.2 Transportation 54.4 80.8 78.5 Media

24.5

73.1

68.0

100.0 100.0

100.0 96.4

98.1 96.0

65.8

62.8

64.5

81.3

78.2

82.1

100.0

98.2

92.2

33.3

40.4

41.3

90.0

73.0

70.6

Time to lease private land (days)

Time to lease public land (days)

151

156

140

79.1

87.5

85.2

84.7

66.8

70.6

52.7

51.7

57.9

Sector group 1 (constr., tourism, retail) Sector group 2 (health care, waste mgt.)

Among the 14 countries covered by the Investing Across Sectors indicators in the Latin America and the Caribbean region, Mexico’s foreign equity ownership restrictions are stricter than the regional average. The Foreign Investment Law sets out a list of strategic sectors that are either closed to foreign capital participation or in which foreign ownership is limited. Unlike most other countries in the region, Mexico imposes restrictions on foreign equity ownership not only in the service, but also in the primary sectors. The oil and gas industry, for example, is closed to foreign ownership, and foreign capital participation in the agriculture and forestry sectors is limited to a maximum share of 49%. In the service industries, foreign investors are not allowed to engage in electricity transmission and distribution. Foreign ownership in electricity generation companies is possible under certain circumstances as defined by the Regulations of the Foreign Investment Law and the Electric Energy Public Service Law. Foreign capital participation is also limited to a less-than-50% stake in fixed-line telecommunications, railway freight transportation, port and airport operation, and newspaper publishing. Foreign ownership of nationwide television channels is not allowed.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

It takes 11 procedures and 31 days to establish a foreign-owned limited liability company (LLC) in Mexico (Mexico City). This process is among the shortest of the IAB countries in Latin America and the Caribbean and is shorter than the IAB global average. All companies in Mexico require at least 2 partners, regardless of the amount of their participation. In addition to the procedures required of a domestic company, a foreign company must legalize any of the parent company’s documents that were issued abroad. A company engaging in international trade must also register with the Importer’s Registry (padrón de importadores). There is no required investment approval. However, a foreign company must register with the National Registry of Foreign Investments (Registro Nacional de Inversiones Extranjeras) within 40 business days of incorporation. Regulations of the Public Registry of Commerce mandate that registration of the bylaws and articles of incorporation be completed within 2 business days when the filing is made through the electronic system (SIGER). Companies in Mexico are free to open and maintain a bank account in foreign currency. The minimum capital requirement for LLCs is MXN 3,000 (~$240), 50% of which must be subscribed and paid in at incorporation.

In Mexico, a foreign company may lease or buy both privately and publicly held land. The purchase of land is subject to certain restrictions. Foreign companies may not purchase land that is located within 100 kilometers of the border and 50 kilometers of the coasts. The lease or purchase of public land requires a reclassification of the land to the private domain. A foreign company must obtain authorization from the relevant minister before acquiring any land. The maximum duration for lease contracts is a renewable term of 20 years. The lease contract can offer the lessee the right to sublease, subdivide, or mortgage the leased land. The transfer of leases of publicly held land is restricted. Registration of leases is not mandatory. If a company decides to register the land, there is a fast-track registration process available for a higher fee. Land-related information may be found in the registry and cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Arbitration is governed by a chapter in the Federal Commerce Code, which is largely based on the UNCITRAL Model Law. Mexican courts have exclusive competence to resolve disputes over land and water within Mexican territory. Disputes involving immovable property matters, such as rights in rem, the use and exploitation of concession rights, and lease agreements over such assets, cannot be resolved through arbitration. Parties are free to choose any arbitrators and the language of the proceedings in both domestic and international arbitrations. The law requires arbitrators to disclose any circumstances likely to give rise to justifiable doubts regarding their impartiality or independence. Parties can choose foreign lawyers to represent them in arbitrations in Mexico. There is a pilot program for implementing an online arbitration center at the Federal Consumer’s Protection Agency. Mexican courts have stated a pro-arbitration policy in multiple decisions. Arbitration awards are enforced through a summary proceeding that may not be appealed to a higher court. The decision enforcing the award, however, may be challenged by a constitutional trial—“Amparo Indirecto.” This is a two-stage constitutional procedure that includes a summary federal proceeding and a federal appeal, which are filed before a federal district court and before a collegiate circuit court, respectively. Such proceedings delay enforcement and can possibly frustrate the arbitration. On average, it takes around 51 weeks to enforce an arbitration award rendered in Mexico, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 46 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

131

Moldova IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 100.0 84.0 78.5 Media 74.5 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Most of the industry sectors covered by the Investing Across Sectors indicators are fully open to foreign equity ownership in Moldova. As a notable exception, the Law on the Press (No. 243/1994) requires foreign natural and legal persons who wish to own newspaper companies to co-found them with a domestic partner. Foreign investors are not allowed to hold more than 49% of the share capital. The Audiovisual Code (Law No. 260-XVI, dated July 27, 2006) stipulates that foreign investors (as well as domestic ones) may not hold the majority (50% plus 1 share) in the equity capital of more than 2 TV broadcasting companies in Moldova. While foreign ownership in the health care sector is not limited per se, the Law on Entrepreneurship and Enterprises (No. 845/1992) prohibits private companies (foreign and domestic) from providing certain services, such as the supervision and treatment of pregnant women, drug addicts, or persons with cancer, dangerous contagious diseases, or aggressive mental diseases. Monopolistic market structures in certain strategic sectors such as electricity transmission, fixed-line telecommunications infrastructure, airport operation, and forestry present further obstacles to potential foreign investors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

70.0

76.8

64.5

79.9

82.9

82.1

100.0

97.6

92.2

52.6

50.3

41.3

70.0

78.9

70.6

19 75

43 133

61 140

84.0

82.5

85.2

81.8

69.7

70.6

60.9

64.4

57.9

It takes 9 procedures and 10 days to establish a foreign-owned limited liability company (LLC) in Moldova (Chisinau). This process is faster than the average of IAB countries in the Eastern Europe and Central Asia region and one of the fastest globally. The only additional requirement for a foreign company is to provide a notarized and translated copy of the articles of incorporation and commercial registration of the parent company abroad. A foreign company does not need an investment approval. The term provided by law for registration at the State Registration Chamber is 5 days. This step can be expedited with an additional fee and completed within 24 hours. Companies in Moldova are free to open and maintain bank accounts in foreign currency once authorization is received by the local bank from the Moldovan State Fiscal Service. The minimum capital requirement for domestic and foreign companies is MDL 5,400 (~$434). In the case of a sole shareholder, the share capital must be paid in full before registration. If there are more shareholders, only 40% of the capital must be contributed before registration and the remaining 60% within 6 months of registration.

In Moldova, most foreign companies prefer to buy private land. Other available options include leasing privately or publicly held land or buying publicly held land. Public land may be bought, but requires a lengthy procedure of reclassification and a public auction. Public land is leased subject to the authorization of the relevant government authority. Both privately and publicly held land may be leased for a maximum renewable term of 99 years. Lease contracts can offer the lessee the right to subdivide, sublease, or mortgage the leased land. There may be restrictions on the use of publicly held land. There are no restrictions on the amount of land that may be leased. Registration of land may be completed in 10 days, but it is possible to fast track the procedure and complete registration in 1 day, for a higher fee. Land-related information may be obtained from the land registry and cadastre, which are linked. The land registry is based on a cadastre-title system.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Alternative dispute resolution (ADR) in Moldova is regulated by the Law on Arbitration No. 2 (2008), the Law on International Commercial Arbitration No. 24 (2008), and the Law on Mediation No. 134 (2007). The Law on Arbitration regulates domestic arbitration (disputes without an international element). The following commercial disputes are not arbitrable: those arising from rental contracts of residential premises; disputes over property rights relating to housing; disputes arising from insurance contracts, if the insured asset is situated or the insured risk took place in Moldova; disputes arising from transport contracts, if the carrier or departure, or arrival points are situated in Moldova; disputes involving seagoing ships or aircrafts registered in Moldova; and insolvency disputes. Parties are free to appoint arbitrators of any nationality or professional qualifications. Foreign counsel may represent parties in arbitration proceedings in Moldova. The Law on Arbitration requires that arbitrators preserve the confidentiality of the proceedings. Such provision is omitted from the Law on International Commercial Arbitration. In domestic arbitration, parties may only choose arbitral institutions in Moldova that are registered with the Supreme Court of Justice. A general first instance court has jurisdiction to assist arbitration proceedings and enforce awards in domestic arbitrations. The Economic Court of Appeals has jurisdiction to assist international arbitration proceedings and enforce both international awards rendered in Moldova and foreign awards. On average, it takes around 13 weeks to enforce an arbitration award rendered in Moldova, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 21 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

132

Investing Across Borders 2010

Montenegro IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 100.0 84.0 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Without any legal ownership restrictions on the 33 sectors covered by the Investing Across Sectors indicators, Montenegro is one of the most open countries to foreign equity ownership. In practice, though, a comparatively large number of sectors are characterized by monopolistic or oligopolistic market structures. In particular the electricity and transportation sectors as well as the health care, forestry, and mining industries, are operated by monopolies. However, the processes of structural reforms and of privatization are ongoing.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

79.0

76.8

64.5

69.2

82.9

82.1

100.0

97.6

92.2

78.9

50.3

41.3

65.0

78.9

70.6

40 185

43 133

61 140

63.5

82.5

85.2

60.0

69.7

70.6

46.5

64.4

57.9

It takes 14 procedures and 15 days to establish a foreign-owned limited liability company (LLC) in Montenegro (Podgorica). This process is slightly faster than the regional average for Eastern Europe and Central Asia, but much faster than the IAB global average. A foreign company establishing a subsidiary in Montenegro does not need an investment approval. It must, however, authenticate and translate the parent companyâ&#x20AC;&#x2122;s documentation abroad. If a company (domestic or foreign) wants to engage in international trade, it must register with the customs authority. The company registry is in Podgorica in the Commercial Court building and applications can be downloaded online. The legal time limit for registration is 4 days, but, in practice, it usually takes only 2 days. Companies in Montenegro are free to open and maintain bank accounts in foreign currency. The minimum paid-in capital requirement is a symbolic 1.

Although legally possible, leasing land is not common in Montenegro. The most common option for foreign companies seeking to acquire land is to buy private land. It is possible to buy publicly held land, but the procedure takes a relatively longer time. The publicly held land that is available for lease or purchase is typically owned by the municipality. Land may be leased through direct negotiations with that municipality. However, the law stipulates that land be sold by a public tender procedure. The maximum duration of leases can be unlimited; consent from the municipality is required for leases of a period greater than 30 years. For leases longer than 90 years, consent is required from parliament. Lease contracts can offer the lessee the right to subdivide, sublease, or mortgage the leased land, subject to the terms of the lease contract. Land-related information can be found in the land registry and cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

There is no specific law on commercial arbitration in Montenegro and arbitration of commercial disputes is uncommon. There are some provisions on arbitration in the Law on Civil Procedure (2004) and the Law on the Chamber of Commerce (2009), but they are not very detailed and do not contain definitions of main arbitration concepts. According to that law, disputes over immovable property and intra-company disputes are resolved by the courts and cannot be submitted to arbitration. Acting judges can be appointed only as presiding or sole arbitrators. Since most issues related to arbitration are not regulated by law, and there is no practice, it is unclear if parties to an arbitration have enough autonomy to determine their arbitration procedures and whether courts would assist arbitrators during the proceedings. There is no functioning arbitral institution in Montenegro, although the Chamber of Commerce has adopted rules on arbitration. The country has ratified the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, but not the ICSID Convention. Montenegro has enacted a Mediation Law (2005), which is based on the UNCITRAL Model Law, and the country has an active Centre for Mediation. Under the Mediation Law, courts may refer litigating parties to mediation. On average, it takes around 45 weeks to enforce an arbitration award rendered in Montenegro, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 45 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

133

Morocco IAB global average (87 countries)

IAB regional average (5 countries)

Country score

Indicators

Middle East and North Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 93.8 78.8 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 100.0 95.0 96.6 Telecommunications 100.0 84.0 88.0 Electricity 0.0 68.5 87.6 Banking 100.0 82.0 91.0 Insurance 100.0 92.0 91.2 Transportation 39.8 63.2 78.5 Media 100.0 70.0 68.0 Sector group 1 (constr., tourism, retail) 100.0 94.9 98.1 Sector group 2 (health care, waste mgt.) 100.0 90.0 96.0

While Morocco has opened up the majority of the sectors of its economy to foreign investors, overt statutory ownership restrictions still exist in a number of sectors, predominantly in services. Airport and port operation as well as the electricity transmission and distribution sectors are closed to foreign capital participation. Foreign ownership in companies providing domestic or international air transportation services is limited to a maximum of 49%. In the oil and gas sector, the National Agency for Hydrocarbons and Mines retains a compulsory share of 25% of any recognition license or exploitation permit. In addition to these restrictions, a number of sectors are dominated by government monopolies, including, but not limited to, those mentioned above. Those monopolies, together with a high perceived difficulty of obtaining required operating licenses, represent a potential obstacle for foreign companies to engage.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

55.3

58.6

64.5

86.8

78.3

82.1

n/a

68.8

92.2

73.7

46.4

41.3

65.0

66.0

70.6

101 296

59 123

61 140

97.6

82.0

85.2

69.5

65.5

70.6

64.7

48.7

57.9

With 8 procedures and 18 days, the process of establishing a foreign-owned subsidiary in Morocco is faster than both the IAB regional average for the Middle East and North Africa and the IAB global average. Only 2 additional procedures are required of foreign companies. Except for French enterprises, which are exempt from this requirement, any foreign company wishing to establish a subsidiary in Morocco must provide an apostille, a translated copy of its articles of association, and an extract of the registry of commerce in its country of origin. There is no investment approval requirement. Instead, foreign companies must report the incorporation of the subsidiary a posteriori to the Foreign Exchange Board (Office National de Change) to facilitate repatriation of funds abroad (such as profits, dividends). This step usually takes 5 days to complete. Registration documents are available online and registration is made at a one-stop shop—Centre Regional d’Investissement (CRI)—that also serves for tax, social security, and VAT registration. Foreign companies in Morocco are not allowed to hold foreign currency bank accounts. Instead, they can hold Convertible Export Promotion Accounts (CCPEX), which allow them to receive and transfer foreign currencies. The foreign currency credited in CCPEX accounts is converted into Moroccan dirham (MAD) and re-converted to foreign currency as needed for repatriation purposes. Morocco has a minimum capital requirement of MAD 10,000 (~$1,200) for domestic and foreign companies, 25% of which must be paid in at registration.

Foreign companies seeking to access land may lease or buy privately or publicly held land, with the exception of agricultural land, which foreign entities are prohibited from owning. Publicly held land may be leased or bought with approval from the relevant authority. Foreign companies seeking to lease publicly held land must first obtain approval from the Regional Center for Investment. There is no clearly defined procedure for leasing publicly held land and the process can take up to a year. Registration of all land transactions is mandatory. The maximum duration for a lease contract is 15 years. There are no restrictions on the amount of land that may be leased. The lease contract offers the lessee the right to sublease, subdivide, and/or mortgage the leased land, subject to the terms of the contract. Most land-related information can be found in the national registry and cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Arbitration and mediation in Morocco are regulated by the Code of Civil Procedure (2007). The new law is based on French law and the UNCITRAL Model Law, but lacks provisions regarding interim measures and preliminary orders, the conduct of arbitral proceedings, and the grounds for refusing recognition or enforcement of arbitral awards. All commercial matters are arbitrable. Under the Civil Procedure Code, arbitrators must declare themselves to the general prosecutor of their local Court of Appeal. The prosecutor includes the registered arbitrators on an arbitrators’ list of the relevant Court of Appeal. Parties to arbitration proceedings in Morocco may only be represented by lawyers who are registered at the relevant Court of Appeal. The law expressly states that arbitrators must be impartial and independent, and must preserve the confidentiality of the proceedings. Domestic arbitration awards must be enforced within 15 days of rendering, which is not required of foreign arbitration awards. A commercial court of first instance is responsible for enforcement of arbitration awards (domestic and international). On average, it takes around 12 weeks to enforce an arbitration award rendered in Morocco, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 16 weeks for a foreign award. Court decisions enforcing an arbitration award can only be appealed for foreign arbitration awards.

For more information on this country, please go to http://www.investingacrossborders.org

134

Investing Across Borders 2010

Mozambique IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 75.0 84.1 88.0 Electricity 100.0 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 100.0 86.6 78.5 Media 20.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Most of the industries covered by the Investing Across Sectors indicators are open to foreign equity ownership in Mozambique. The Media Law (No. 18/91), however, stipulates that only Mozambique citizens may own media enterprises, including television channels and newspapers. Foreign capital participation in such companies is only permitted up to a maximum of 20%. Furthermore, fixed-line telecommunications is one of the sectors reserved for public investment. The right to establish and operate fixed-line telecommunication services is granted exclusively to one Mozambican company, Telecommunications of Mozambique S.A.R.L., which is a joint stock/public limited company. Its current license expires in 2028 and is renewable.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

65.8

51.5

64.5

53.1

76.6

82.1

n/a

77.3

92.2

33.3

33.9

41.3

62.5

58.5

70.6

It takes 12 procedures and 34 days to establish a foreign-owned limited liability company (LLC) in Maputo, Mozambique, faster than the IAB regional average for Sub-Saharan Africa and the IAB global average. A foreign company establishing itself in Maputo is not required to seek an investment approval unless it wants to avail itself of investment incentives offered by the Investment Promotion Centre (CPI). It will, however, need to authenticate the parent companyâ&#x20AC;&#x2122;s documentation in the Mozambican embassy or consulate in its country of origin. In addition, foreign companies that engage in retail and wholesale trade qualify as foreign-trade operators and must obtain a foreign-trade operator card from the Ministry of Trade and Industry. This card takes 7 days to obtain. Registration with the Legal Entities Registrar Office of Maputo takes 1 to 2 days. The required documents are available online, but cannot be submitted online. Any company in Mozambique may freely open and maintain bank accounts in foreign currency. The minimum paid-in capital requirement of MZM 20,000 (~$740) was abolished by Law No. 2/2009 of April 24, 2009 (DL2/09). Instead, said law stipulates that shareholders may now decide on the proper capital of the company. The minimum investment value necessary to take advantage of any guarantees and fiscal benefits is $50,000 for foreign investments.

148

Time to lease public land (days)

175

151

140

95.4

82.4

85.2

80.9

73.8

70.6

22.2

55.9

57.9

In Mozambique, all land is considered property of the state and therefore cannot be sold. The available option for foreign companies seeking to acquire land in Maputo is the lease of publicly held land. Foreign companies may lease land provided they have an authorized investment project as provided by Mozambiqueâ&#x20AC;&#x2122;s investment law and the company is established or registered in Mozambique. The process of leasing land requires negotiations with the relevant public authority and members of the surrounding community in which the land is located and consequent approval from both the public authority and community members. Land may be leased for a maximum of 99 years. Approval is required from the provincial government to lease land of up to 10,000 ha. For greater amounts of land, approval must be sought from the relevant minister. Lease contracts offer the lessee the right to subdivide or sublease the leased land, subject to approval by the relevant authority. Most land-related information can be found in the cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Law No. 11/99 governs mediations and arbitration in Mozambique. The same rules apply to both domestic and international arbitrations. Unless there are specific laws providing otherwise, commercial disputes can generally be submitted to arbitration. There are also restrictions on disputes involving state entities that can be submitted to arbitration. Parties are free to select arbitrators of any nationality, gender, or professional qualifications in both domestic and international arbitrations. The law stipulates that arbitrators must be impartial and independent. Parties are also free to have foreign lawyers represent them in domestic arbitration proceedings. There is no online arbitration in Mozambique, but the Center for Arbitration, Conciliation, and Mediation (CACM) administers domestic and international arbitrations. It takes less than 30 days from filing the request for arbitration to the constitution of the arbitration tribunal. Domestic courts do not have a clear pro-arbitration policy, and the law does not require courts to assist the arbitration process by ordering the production of documents or the appearance of witnesses. Arbitration awards are enforced in the Judicial Court of Maputo, and decisions regarding enforcement can be appealed to the Supreme Court. On average, it takes around 46 weeks to enforce an arbitration award rendered in Mozambique, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 121 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

135

Nicaragua IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 100.0 94.5 88.0 Electricity 100.0 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 89.8 80.8 78.5 Media 74.5 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 96.4 96.0

According to the Foreign Investments Promotion Law of Nicaragua, foreign investors have the same rights and obligations as domestic investors with respect to ownership of local companies. The majority of the sectors covered by the Investing Across Sectors indicators are thus open to foreign equity ownership. As a notable exception, overt legal ownership restrictions still exist on the domestic air transportation and television broadcasting sectors. In both industries, foreign capital participation is limited to a less-than-50% stake. In addition to those overt legal restrictions, a number of business sectors, such as electricity transmission and port and airport operation, are still dominated by publicly owned enterprises. Those monopolies, together with a high perceived difficulty of obtaining required operating licenses, make it difficult for foreign companies to engage in these sectors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

57.9

62.8

64.5

72.1

78.2

82.1

100.0

98.2

92.2

31.6

40.4

41.3

75.0

73.0

70.6

149 267

62 156

61 140

95.4

87.5

85.2

73.3

66.8

70.6

40.3

51.7

57.9

It takes 8 procedures and 42 days to establish a foreign-owned limited liability company (LLC) in Nicaragua (Managua), faster than the regional average for Latin America and the Caribbean and in line with the IAB global average. Although foreign ownership is allowed, an LLC needs a minimum of 2 shareholders (one being a natural person). The legal representative of the company must be a resident of Nicaragua—getting a residency permit can take up to 3 months. In addition to the procedures required of a domestic company, a foreign company must legalize and translate the parent company’s documents in its country of origin. In addition, a company engaged in international trade must obtain an importer/exporter ID from the customs authority (Dirección General de Servicios Aduaneros) for imports and from CETREX (Centro de Exportaciones) for exports. A company in Nicaragua can hold a commercial bank account in U.S. dollars, euros, or córdoba. There is no minimum capital requirement for foreign or domestic companies in Nicaragua.

The most common means by which foreign companies acquire land in Nicaragua is to lease or buy privately owned land. Although not prohibited, leasing or buying public land is not common. It requires the enacting of specific laws as well as special terms and conditions governing the corresponding public auction. There is no limit on the amount of land that may be leased. Lease contracts offer the lessee the right to subdivide or sublease the leased land or use it as collateral, subject to the terms of the contract. Only the owner of the land is allowed to mortgage it. Lease contracts for durations of 4 or more years must be executed by a notary public as a public deed and registered in the land registry. Land-related information may be found in the land registry and cadastre, which are linked and coordinated to share data. It is possible to find electronic data for most land parcels in Managua.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Alternative dispute resolution (ADR) in Nicaragua is governed by the Mediation and Arbitration Law (2005), which is largely based on the UNCITRAL Model Law. The law recognizes the kompetenz-kompetenz principle and provides for Supreme Court revision of the arbitration tribunal’s ruling on its own jurisdiction, if and when the arbitration tribunal decides upon it as a previous matter, and not of the award itself. The law distinguishes between arbitration at equity and arbitration at law. In arbitrations at law, all members of the arbitration tribunal must be lawyers. Parties can choose foreign lawyers to represent them in arbitrations in Nicaragua. Parties domiciled in Nicaragua are free to choose any arbitral institution, even one outside of Nicaragua. There are around 13 arbitral institutions in Nicaragua. The most commonly used for commercial disputes is the Nicaraguan Chamber of Commerce Mediation and Arbitration Center Antonio Leiva Pérez. Nicaraguan arbitration law is relatively new and not many arbitration agreements, requests, or awards have been presented to local courts for assistance with the proceedings or enforcement. There are no legal provisions mandating courts to assist arbitral tribunals with the taking of evidence, but there are provisions for assistance with orders for interim measures. The Civil District Court is responsible for enforcement of arbitration awards. On average, it takes around 31 weeks to enforce an arbitration award rendered in Nigeria, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 104 weeks for a foreign award. It is not clear, under the current Nicaraguan legal framework, whether appeal of this court’s decisions is possible, and there is no such precedent yet.

For more information on this country, please go to http://www.investingacrossborders.org

136

Investing Across Borders 2010

Nigeria IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 100.0 84.1 88.0 Electricity 100.0 90.5 87.6 Banking 70.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 100.0 86.6 78.5 Media 100.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Compared with other economies in the Sub-Saharan Africa region covered by the Investing Across Sectors indicators, Nigeria is one of the most open countries to foreign equity ownership. All of its major industry sectors are fully open to foreign capital participation. The only exception is the banking industry, in which foreign investors are not allowed to acquire more than 40% of an already existing Nigerian bank. There are no restrictions, however, for investors setting up a new bank in Nigeria.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

47.5

51.5

64.5

78.5

76.6

82.1

n/a

77.3

92.2

50.0

33.9

41.3

67.5

58.5

70.6

It takes 12 procedures and 44 days to establish a foreign-owned limited liability company (LLC) in Nigeria (Lagos), slightly faster than the regional average for Sub-Saharan Africa and slightly slower than the IAB global average. The law permits wholly foreign-owned subsidiaries, but they must have at least 2 shareholders and the share capital must be denominated in naira. Only a local counsel accredited by the Corporate Affairs Commission can incorporate companies in Nigeria. In addition to the procedures required of a domestic company, a foreign-owned LLC is encouraged to register the investment with the Nigerian Investment Promotion Commission (NIPC) to ease the process of repatriation of funds (dividends, equity upon divestment). According to the Nigerian Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, foreign capital invested in the LLC must be imported through an authorized dealer, which will issue a Certificate of Capital Importation. This certificate entitles the foreign investor to open a bank account in foreign currency. Finally, a company engaging in international trade must get an importexport license from the Nigerian customs service. The minimum capital requirement is higher for companies with foreign equity than for domestic ones (NGN 10,000,000 [~$66,500] and NGN 10,000 [~$66], respectively). The law requires at least 25% of the shares to be issued at incorporation.

123

Time to lease public land (days)

254

151

140

95.4

82.4

85.2

82.3

73.8

70.6

71.5

55.9

57.9

In Lagos, all land is vested in the state governor. It is impossible to obtain an absolute interest in land. When leasing or buying land one obtains a “right of occupancy,” which is usually for 99 years or less. Foreign companies may lease land or buy land interests from private landowners who have already been granted rights of occupancy by the state. The interest transferred is the unexpired term of the right of occupancy. Leases may also be obtained from government-owned property development corporations. Leases for more than 3 years require the governor’s consent. Lease contracts offer the lessee the right to transfer, subdivide, sublease, or mortgage the leased land, subject to the terms of the contract and approval from the governor. There are no restrictions on the amount of land that may be leased. Land-related information is found primarily in the land registry. There are reforms underway to consolidate the registration of titles, provide for compulsory registration of all properties, and create electronic geographic information systems (GIS).

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration and Conciliation Act (1988), reenacted as the Arbitration and Conciliation Act (2004), governs arbitrations in Nigeria and gives effect to the 1958 New York Convention. The Act governs both domestic and international arbitrations. It is based on UNCITRAL’s Model Law, with several differences. For example, it does not permit parties to a domestic arbitration to choose the procedural rules, but stipulates that domestic arbitration proceedings in Nigeria must be conducted in accordance with the arbitration rules contained in the act. The act has no definition of domestic arbitration. Rather, arbitration that does not fall under the definition of international arbitration is considered as domestic. Parties are free to select arbitrators of any nationality, gender, or professional qualifications in both domestic and international arbitrations. Online arbitration is not available in Nigeria. There are, however, several arbitral institutions from which parties can choose. The law provides for domestic courts to assist arbitral tribunals by ordering the production of documents or the appearance of witnesses. In practice, however, the courts are not very supportive of arbitration, and have on several occasions disregarded arbitration agreements. On average, it takes around 20 weeks to enforce an arbitration award rendered in Nigeria, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 21 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

137

Pakistan IAB global average (87 countries)

IAB regional average (5 countries)

Country score

Indicators

South Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 88.0 92.0 Agriculture and forestry 100.0 90.0 95.9 Light manufacturing 100.0 96.3 96.6 Telecommunications 100.0 94.8 88.0 Electricity 100.0 94.3 87.6 Banking 49.0 87.2 91.0 Insurance 51.0 75.4 91.2 Transportation 79.6 79.8 78.5 Media 37.0 68.0 68.0 Sector group 1 (constr., tourism, retail) 100.0 96.7 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Of the 33 sectors covered by the Investing Across Sectors indicators, 27 are fully open to foreign capital participation in Pakistan. While the manufacturing and primary industries are fully open to foreign equity ownership, the country imposes ownership restrictions on a number of service sectors. In the media industry, for example, the Press, Newspapers, News Agencies, and Books Registration Ordinance (2002), stipulates that only Pakistani citizens may own local newspaper companies. Foreign capital participation in such companies is permitted only up to a maximum of 25% and is further subject to government approval. Foreign ownership in nationwide television channels is limited to a less-than-50% stake. In the financial services sector, the Banking Companies Ordinance allows a maximum of 49% foreign ownership of Pakistani banks, while foreign capital participation in local insurance companies is allowed up to a 51% share. In the agriculture sector, foreign investment is subject to a minimum investment amount of $300,000.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

64.7

62.5

64.5

85.7

87.5

82.1

100.0

93.8

92.2

10.5

20.1

41.3

65.0

59.7

70.6

59 96

99 205

61 140

94.9

86.4

85.2

68.5

55.0

70.6

35.5

36.4

57.9

It takes 11 procedures and 21 days to establish a foreign-owned limited liability company (LLC) in Pakistan (Karachi), faster than both the average for IAB countries in South Asia and the IAB global average. In addition to the procedures required of a domestic firm, a foreign company must authenticate the documents of the parent company in its country of origin. Foreign investors can hold 100% equity of industrial projects without obtaining permission from the government, except for the following sectors: arms and ammunitions, high explosives, radioactive substances, security printing, currency, and mint. Companies may open and maintain foreign currency accounts with approval from the State Bank of Pakistan. Foreign currency accounts are subject to the condition that they are only fed with: (i) investment from abroad; (ii) profits/dividends from such investment; or (iii) profits from reinvestment of profits from such investment. There is no minimum capital requirement for domestic or foreign companies in Pakistan.

Foreign companies seeking to access land in Karachi have the option to lease or buy privately or publicly held land. Foreign companies require authorization from the government in order to acquire land. The sale of public land for commercial purposes may only be by open auction at a price not less than market value. The process of obtaining land leases from the government is relatively lengthy. Lease contracts offer the lessee the right to transfer, subdivide, sublease, or mortgage the leased land, subject to the terms of the contract as well as to local bylaws and regulations governing the land. In the case of publicly owned land, transfers are restricted to another company engaged in or intending to engage in a similar type of industry. When the government grants land for any industrial purpose it may be mortgaged or used as collateral, subject to the government’s prior permission. Most land-related information in Karachi may be found in the registry.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration Act (1940) governs domestic arbitration in Pakistan. This legislation was passed before Pakistan’s independence, but continues to be in effect. The act applies to 3 types of arbitration: (i) arbitration without court intervention; (ii) arbitration where there is no suit pending with court intervention; and iii) arbitration “in suit” with court intervention. The Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Ordinance (2007) provides mechanisms for the enforcement of foreign arbitral awards. At the time of data collection, a new Arbitration Act was anticipated, which would repeal the 1940 legislation. Given that the 1940 statute does not regulate international arbitration, it is primarily the courts that have established whether to treat arbitrations as domestic or international. All commercial matters are arbitrable, although the Supreme Court has ruled that matters of “grave public and national importance” cannot be arbitrated. Parties are free to select arbitrators of any gender, nationality, or professional qualifications. An overburdened court system has made the enforcement of arbitral awards difficult. On average, it takes around 115 weeks to enforce an arbitration award, from filing an application to a writ of execution attaching assets (assuming there is no appeal).

For more information on this country, please go to http://www.investingacrossborders.org

138

Investing Across Borders 2010

IAB global average (87 countries)

East Asia and the Pacific IAB regional average (10 countries)

Indicators

Country score

Papua New Guinea Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas .. 75.7 92.0 Agriculture and forestry .. 82.9 95.9 Light manufacturing .. 86.8 96.6 Telecommunications .. 64.9 88.0 Electricity .. 75.8 87.6 Banking .. 76.1 91.0 Insurance .. 80.9 91.2 Transportation .. 63.7 78.5 Media .. 36.1 68.0 Sector group 1 (constr., tourism, retail) .. 91.6 98.1 Sector group 2 (health care, waste mgt.) .. 84.1 96.0

Data not available.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

108

48.9

57.4

64.5

84.9

82.1

83.3

92.2

35.1

41.0

67.5

70.6

.. ..

66 151

61 140

59.9

83.8

85.2

55.6

66.1

70.6

26.2

46.6

57.9

It takes 10 procedures and 108 days to establish a foreign-owned limited liability company (LLC) in Port Moresby, Papua New Guinea, slower than both the average for IAB countries in East Asia and the Pacific and the IAB global average. In addition to the procedures required of domestic companies, foreign companies must authenticate the documents of the parent company abroad. They must also apply for a certificate of foreign investment to carry on business in the country. This certificate is granted by the Investment Promotion Authority and usually takes 22 days. A foreign company must also obtain a certificate of capital importation from the Bank of Papua New Guinea (central bank), which takes on average 30 days. Company registration documents are available online on the Investment Promotion Agencyâ&#x20AC;&#x2122;s Web site and filing can be done through the Electronic Filing Facility on the same Web site. Foreign companies wishing to open and maintain bank accounts in foreign currency must obtain approval from the Bank of Papua New Guinea. This approval is granted within 11 days. There is no minimum capital requirement to establish an LLC.

Data not available.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Papua New Guineaâ&#x20AC;&#x2122;s Arbitration Act was passed in 1951, well before the UNCITRAL Model Law, and makes no distinction between domestic and international arbitration. The Supreme Court of Papua New Guinea has held that arbitration clauses are not severable from the main contract. There is no arbitral institution in Papua New Guinea and so most arbitrations are conducted on an ad hoc basis. Courts in Papua New Guinea seem to decline jurisdiction when there is an arbitration clause in all or nearly all cases and there are specific provisions in the national law to allow domestic court to order the production of documents or the appearance of witnesses. Judgments enforcing or denying enforcement of an award may be appealed to the Supreme Court. Whilst Papua New Guinea has not ratified the New York Convention, it is a signatory of the ICSID Convention. The IAB team understands from local counsel that there is very little arbitration practice on the ground, and they were unable to estimate the length of time to enforce arbitration awards, whether rendered in Papua New Guinea, or a foreign country.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

139

Peru IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 91.0 92.0 Agriculture and forestry 100.0 96.4 95.9 Light manufacturing 100.0 100.0 96.6 Telecommunications 100.0 94.5 88.0 Electricity 100.0 82.5 87.6 Banking 100.0 96.4 91.0 Insurance 100.0 96.4 91.2 Transportation 89.8 80.8 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 96.4 96.0

Peru has opened up the majority of the sectors of its economy to foreign investors. Of the 33 sectors covered by the Investing Across Sectors indicators, 32 are fully open to foreign equity ownership. As the only notable exception, foreign capital participation in the domestic air transportation industry is limited to a maximum share of 49%. Foreign companies wishing to provide international passenger air transportation services must have a domicile and a legal representative with broad powers with permanent residence in Peru. This restriction does not affect the ownership structure of such companies, however, which may be 100% foreign-owned.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

72.5

62.8

64.5

79.3

78.2

82.1

100.0

98.2

92.2

44.4

40.4

41.3

75.0

73.0

70.6

20 112

62 156

61 140

97.4

87.5

85.2

83.3

66.8

70.6

62.6

51.7

57.9

It takes 11 procedures and 43 days to establish a foreign-owned limited liability company (LLC) in Peru (Lima), faster than the regional average for Latin America and the Caribbean and in line with the IAB global average. Although foreign ownership is allowed, a company needs a minimum of 2 shareholders and its legal representative must be a resident of Peru. In addition to the procedures required of a domestic company, a foreign company must translate and authenticate the parent companyâ&#x20AC;&#x2122;s documents abroad. Foreign companies investing in Peru do not need an investment approval. However, it is mandatory to register a foreign investment with Peruâ&#x20AC;&#x2122;s investment promotion agency, Proinversion, in order to be able to repatriate funds at a later date. Companies in Peru are free to open and maintain a bank account in foreign currency. There is no minimum capital requirement for companies in Peru. However, 25% of the declared capital must be paid in at the time of establishment.

Foreign companies seeking to access land in Peru may lease or buy privately or publicly held land. The Peruvian Constitution states that foreigners cannot own mines, woods, waters, hydrocarbons, or power sources within 50 kilometers of the border, unless allowed by a supreme decree. There are no further restrictions on foreign ownership of land. If the land is publicly owned, it must be sold or leased at public auction. In exceptional circumstances, a party seeking to lease public land may negotiate directly with the relevant public authority. Generally, the duration of lease contracts is a renewable term of 10 years, 6 years for publicly held land. Lease contracts offer the lessee the right to sublease, subdivide, or mortgage the leased land, subject to the terms of the contract. Land registration is not mandatory unless a company seeks to enforce its rights against a third party. Land-related information may be found in the public registry and cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The most recent Peruvian Arbitration Law was enacted in 2008 (Decree No. 1071) and is largely based on the UNCITRAL Model Law, with some exceptions. Under Peruvian law, parties can request the exclusion from the award of aspects of fact and law, which the tribunal has decided should not have been part of the decision. The basis for setting aside arbitration awards under Peruvian law is more restrictive than that established by the UNCITRAL Model Law and it must be invoked during the arbitration proceedings. Peruvian law allows foreign parties to renounce their right to set aside an arbitration award. All commercial matters are arbitrable. The law distinguishes between arbitration at law and arbitration at equity. In arbitration at law, the arbitrators must be attorneys, unless the parties agree otherwise. The law establishes that arbitrators can be challenged on grounds concerning their impartiality and/or independence, and requires preserving the confidentiality of arbitration proceedings. Peruvian law establishes strict time frames for conducting arbitration proceedings: the period from the filing of the request to the constitution of the arbitration tribunal is 30 to 40 business days. The law requires courts to assist arbitrators in the taking of evidence and ordering provisional measures. By Official Letter 005-2005-P-CS-PJ of July 4, 2005, the Supreme Court of Peru urges lower courts to respect arbitration as an alternative method of dispute resolution, freely agreed upon by the parties and based on its own principles and rules. On average, it takes around 20 weeks to enforce an arbitration award rendered in Peru, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 41 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

140

Investing Across Borders 2010

Philippines IAB global average (87 countries)

IAB regional average (10 countries)

Country score

Indicators

East Asia and the Pacific

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 40.0 75.7 92.0 Agriculture and forestry 40.0 82.9 95.9 Light manufacturing 75.0 86.8 96.6 Telecommunications 40.0 64.9 88.0 Electricity 65.7 75.8 87.6 Banking 60.0 76.1 91.0 Insurance 100.0 80.9 91.2 Transportation 40.0 63.7 78.5 Media 0.0 36.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 91.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 84.1 96.0

Among the 87 countries covered by the Investing Across Sectors indicators, the Philippines imposes foreign equity ownership restrictions on more sectors than most other countries. The country imposes ownership limitations on many industries, in particular on the primary and service sectors. Foreign capital participation in the mining and oil and gas industries, for example, is limited to a maximum share of 40% by the Philippine Constitution. Foreign ownership in those sectors, however, may be allowed up to 100% if the investor enters into a financial or technical assistance agreement (FTAA) with the government. Such agreements are granted for a 25-year term and require a minimum investment of $50,000,000. In the service sectors, the Constitution limits foreign capital participation in public utilities (telecommunications, electricity, and transportation) to a maximum of 40%. The media industries (newspaper publishing and television broadcasting) and publishing sector are closed to foreign equity ownership.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

57.9

57.4

64.5

68.8

84.9

82.1

n/a

83.3

92.2

23.5

35.1

41.3

87.5

67.5

70.6

It takes 17 procedures and 80 days to establish a foreign-owned limited liability company (LLC) in Manila, the Philippines, slower than both the average for IAB countries in East Asia and the Pacific and the IAB global average. Two additional procedures are required exclusively of a foreign-owned company establishing a subsidiary in Manila. It must provide an authenticated and legalized copy of the documents of the parent company abroad. Also, if the foreign-owned company plans to engage in international trade, it must register with the Bureau of Customs (BOC) as a regular importer. This registration usually takes 27 days. Investment approval is only required if the company wants to benefit from the investment incentives granted by the Board of Investment. Company registration documents are available online at the Securities and Exchange Commission (SEC) Web site, although the online submission process is not yet fully operational. Foreign companies are free to open and maintain bank accounts in foreign currency. The minimum paid-in capital requirement for a domestic LLC is PHP 5,000 (~$112), whereas the minimum paid-in capital requirement for an LLC with foreign equity of 40% or more is PHP 9,000,000 (~$200,000).

Time to lease public land (days)

n/a

151

140

95.4

83.8

85.2

87.0

66.1

70.6

33.7

46.6

57.9

The Philippine Constitution prohibits foreign companies from buying land. The best option available is to lease private land. Foreign companies must get approval from the Board of Investment for long-term leases. Land may be leased for an initial term of 50 years, renewable for another 25 years. There are restrictions on the amount of land that may be leased. A foreign companyâ&#x20AC;&#x2122;s exercise of rights over the land such as subleasing, subdivision, or making improvements is limited by the terms of the lease contract. Only absolute owners of the land may mortgage it. The transfer of the lease to other foreign entities is restricted. Registration of leases is not mandatory. It is recommended that the lease be registered with the local register of deeds to ensure that lease rights are enforceable against third parties. Most land-related information can be found in the land registry and cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Arbitration in the Philippines is governed by both the Republic Act (RA) 876 (otherwise known as the Arbitration Law [1953]), and RA 9285 (otherwise known as the Alternative Dispute Resolution Act [2004]). The latter is based to a large degree on the UNCITRAL Model Law, with a few exceptions limited to situations in which the parties fail to come to an agreement. These acts apply to both international and domestic arbitrations, which are treated substantially the same under Philippine law. While an arbitration agreement may be concluded by email or fax, it must be in writing: the Philippines does not recognize oral agreements or conduct as constituting binding arbitration agreements. The main arbitral institution is the Philippine Dispute Resolution Center, Inc. (PDRCI), which uses its own rules based on the UNCITRAL Arbitration Rules (1976). The general pro-arbitration stance of the Philippines is reflected both in the 2004 Act and in a string of recent case laws enacted by both the Supreme Court and the lower courts. The Philippines has ratified both the 1958 New York Convention and the ICSID Convention. On average, it takes around 135 weeks to enforce an arbitration award rendered in the Philippines, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 126 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

141

Poland IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 59.2 84.0 78.5 Media 74.5 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Foreign ownership of companies in Poland is limited in 5 of the 33 industry sectors measured by the indicators. In particular, as in other EU countries, Polish laws impose a maximum share of 49% for foreign capital in air transportation companies. In addition, foreign capital participation is limited to 49% in the airport and port operation sectors. The perceived difficulty of obtaining required operating licenses further inhibits FDI in the port operations sector, which is currently dominated by publicly owned operators. The media sector is also subject to foreign equity ownership restrictions. Pursuant to the Broadcasting Law, the required license to operate a TV broadcasting company may only be granted if the voting share of foreign owners does not exceed 49% and the majority of the members of the management and supervisory boards are of Polish nationality, with permanent residence in Poland.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

85.0

76.8

64.5

78.6

82.9

82.1

100.0

97.6

92.2

35.0

50.3

41.3

65.0

78.9

70.6

146 162

43 133

61 140

74.2

82.5

85.2

82.8

69.7

70.6

77.3

64.4

57.9

It takes 7 procedures and 33 days to establish a foreign-owned limited liability company (LLC) in Poland (Warsaw), slower than the other IAB countries in Europe and Central Asia but faster than the IAB global average. Polish regulations, applicable to both domestic and foreign investors, prohibit a sole shareholder LLC to be the sole founder and shareholder of another LLC. In addition to the procedures required of domestic companies, a foreign company must provide apostiled and translated documents from the parent company abroad. Since March 31, 2009, new provisions of the Act on the National Court Register have been in force, which allow applicants to obtain a statistical number (REGON), tax identification number (NIP), and entry in the Social Insurance Office (Zakład Ubezpiecze´n Społecznych) when they register with the National Court Registry. This takes about a month. Companies in Poland are free to open and maintain bank accounts in foreign currency. The minimum capital requirement for domestic and foreign companies is PLN 5,000 (~$1,700). Registered share capital for LLCs must be paid in full at registration.

In Poland, foreign companies have the option to lease or buy privately or publicly held land. Publicly held land in Poland is divided into state property and communal property, which are held by different entities. Polish law provides for an institution called a “perpetual usufruct,” which resembles a long-term lease. This form of landholding relates only to lands that belong to the treasury or to units of local self-government. The duration of the lease is between 40 and 99 years and is renewable. A foreign company seeking to acquire this form of lease must require a permit from the relevant ministry. Publicly held land is leased by a public tender procedure. Lease contracts offer the lessee the right to transfer, subdivide, or sublease the land, subject to the terms of the contract and local planning laws. There are no restrictions on the amount of land that may be leased for commercial or industrial use. Land-related information can be found in the land registry and cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Poland does not have a law on arbitration, but there are some provisions in the Polish Code of Civil Procedure of 1964 (amended in 2005). There are also separate regulations on arbitration for consumer disputes, banking disputes, telecom disputes, and disputes relating to hunting law, employment, sports, and electronic payment instruments. There is no statutory definition of domestic arbitration and no distinction in the law between domestic and international arbitration. The law only distinguishes between foreign and domestic arbitral awards for the purpose of their recognition and enforcement. Under the Code of Civil Procedure, the arbitration agreement must be in writing. However, a declaration of intent made electronically and provided with a safe electronic signature verified by a valid qualified certificate is recognized as a written agreement. Parties are free to appoint any arbitrators except for acting state judges. Arbitrators are not expressly bound by law to preserve the confidentiality of arbitration proceedings, but Polish court decisions have recognized that such an obligation exists, based on the arbitrator’s function. There are about 40 arbitral institutions in Poland, most of them small and local. A Warsaw District Court has jurisdiction to enforce arbitral awards. On average, it takes around 13 weeks to enforce an arbitration award rendered in Poland, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 15 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

142

Investing Across Borders 2010

Romania IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 79.6 84.0 78.5 Media 100.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Romanian law (Government Emergency Order No. 92/1997) provides for national treatment of foreign investors with regard to the establishment rights of companies. Foreign investors are generally allowed to invest in any sector open to private domestic companies. Thus, with the exception of the domestic and international air transportation industries, all sectors covered by the Investing Across Sectors indicators are fully open to foreign equity ownership. Foreign capital participation in the 2 aforementioned sectors is limited to a maximum of 49%, as is the case in other European Union countries. This restriction does not apply to investors from countries of the European Economic Area (EEA).

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

89.5

76.8

64.5

86.7

82.9

82.1

100.0

97.6

92.2

33.3

50.3

41.3

85.0

78.9

70.6

57 65

43 133

61 140

84.8

82.5

85.2

75.2

69.7

70.6

93.2

64.4

57.9

It takes 7 procedures and 11 days to establish a foreign-owned limited liability company (LLC) in Romania (Bucharest), slightly faster than the regional average for Europe and Central Asia but much faster than the IAB global average. In addition to the procedures required of a domestic company, the parent company establishing a subsidiary in Romania must authenticate and translate its documents abroad. Foreign companies do not need to seek an investment approval. Romanian legislation, applicable to both domestic and foreign investors, prohibits a sole shareholder LLC to be the sole founder and shareholder of another LLC. The Trade Registry judge must hold a public hearing on the companyâ&#x20AC;&#x2122;s application for registration within 5 days of submission of the required documentation. The registration documents can be submitted, and the status of the registration request monitored, online. Companies in Romania are free to open and maintain bank accounts in foreign currency, although, in practice, Romanian banks offer services only in certain currencies (including euros, U.S. dollars, and Swiss francs). The minimum capital requirement for domestic and foreign LLCs is RON 200 (~$65).

In Romania, leasing land is not an option for companies seeking to build on the land. Romanian building regulations require any person who files for a building permit to have a real property interest as opposed to a personal right, such as a lease, over the designated land. Foreign companies, therefore, most commonly buy land. Publicly held land may be leased, or it may be sold after reclassification as private land. The lease or sale of public land takes place through a public tender procedure. The Romanian Civil Code does not provide for a maximum duration of a lease. In practice, the duration of leases does not exceed 10 to 15 years. Lease contracts offer the lessee the right to subdivide, sublease, or mortgage the leased land, subject to the terms of the lease contract. Land-related information can be found mostly in the cadastre and the National Agency for Cadastre and Real Estate Publicity.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Romanian Civil Procedure Code (enacted 1865, amended 2000) contains a detailed arbitration chapter (Book IV: About Arbitration). The Civil Procedure Code provides strict time limits for duration of arbitration proceedings: 5 months for domestic arbitrations and between 10 to 12 months for international arbitrations, with a maximum extension of 2 months at the request of the parties. There are also strict time limits on the submission of evidence during arbitration. Under the law, an arbitration award must in all cases stipulate the grounds for the arbitratorsâ&#x20AC;&#x2122; ruling. The following disputes are not arbitrable: those involving immovable property, intracompany and bankruptcy disputes, disputes related to the privatization process, and concession agreements. Only Romanian citizens may act as arbitrators in domestic arbitrations. The arbitrator must speak and understand Romanian. These restrictions do not apply to international arbitrations conducted in Romania. Foreign lawyers can be retained only in international arbitration proceedings, except for lawyers from the European Union member states that benefit from reciprocal recognition, subject to certain authorization procedures. There are around 43 arbitral institutions in Romania. The District Court has jurisdiction to enforce arbitral awards and its decision cannot be appealed unless enforcement is denied. On average, it takes around 10 weeks to enforce an arbitration award rendered in Romania, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 11 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

143

IAB global average (87 countries)

Eastern Europe and Central Asia IAB regional average (20 countries)

Indicators

Country score

Russian Federation Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 49.0 94.9 91.2 Transportation 79.6 84.0 78.5 Media 75.0 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

The Russian Federation has opened up the majority of the sectors of its economy to foreign investors. While the manufacturing and primary sectors are open to foreign capital participation, the country imposes ownership restrictions on a number of service sectors. For example, foreign ownership in the domestic and international air transportation sectors is limited to a maximum of 49%. In addition to these capital restrictions, the Air Code of the Russian Federation specifies that the director of an airline company as well as at least two-thirds of the members of the management board must be Russian citizens. Foreign ownership restrictions also exist in the financial services sector, in which foreign capital participation in life insurance companies is limited to a maximum share of 49%. The insurance industry is also subject to a sector-wide limit, whereby the share of assets owned by foreign investors must not exceed 25% of the total assets. Currently this limit has not yet been met, and foreign companies should therefore be allowed to invest. The federal Law On Banks and Banking Activity proposes the establishment of a similar sector-wide quota for the banking sector, which, however, has not yet been established.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

68.4

76.8

64.5

85.7

82.9

82.1

100.0

97.6

92.2

44.4

50.3

41.3

90.0

78.9

70.6

62 231

43 133

61 140

71.6

82.5

85.2

76.1

69.7

70.6

76.6

64.4

57.9

It takes 10 procedures and 31 days to establish a foreign-owned limited liability company (LLC) in the Russian Federation (Moscow), slower than the other IAB countries in Europe and Central Asia, but faster than the IAB global average. All documents needed for registration, and originating abroad (the updated extract from the trade register, for example), must be notarized and legalized in the parent companyâ&#x20AC;&#x2122;s country of incorporation and translated into Russian. The state registration is conducted at the unified registry of the Federal Tax Service, where companies also obtain their tax ID number and register with the State Pension Fund, the State Fund of Social Insurance, and the State Fund of Compulsory Medical Insurance. Generally, the state and tax registrations take 5 days. Companies established under Russian laws are considered resident and therefore free to open and maintain accounts in foreign currency in authorized banks. The minimum capital requirement for domestic and foreign LLCs is RUB 10,000 (~$337), half of which must be paid prior to registration and the rest within 1 year.

Foreign companies seeking to acquire land have the option to lease or buy both privately and publicly held land. Most land in Moscow, however, is publicly held. There are restrictions for foreign companies on buying land for agricultural purposes, mining, or forestry, or land that is near the continental shelf. It is difficult to buy public land for construction purposes. Public land may be leased either by a tender process or in compliance with procedures for granting public land for the construction of a manufacturing facility. There are no limits on the lease term for privately owned land. Publicly held land may be leased for up to 49 years. Lease contracts offer the lessee the right to transfer, subdivide, sublease, or mortgage the leased land, subject to the terms of the contract and local planning laws. Registration is mandatory for leases longer than a year. Most land-related information may be found in the Unified State Register of Rights to Immovable Property and Transactions.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Law on International Commercial Arbitration (1993) regulates international arbitration, in which at least one party must be an entity with foreign investment. The Law on Arbitration Courts in the Russian Federation (2002) regulates domestic arbitration. Under both laws, arbitrators cannot decide ex aequo et bono (at equity), and arbitral awards must always contain the reasons for the decision. The following disputes are not arbitrable: those involving immovable property; shareholdersâ&#x20AC;&#x2122; agreements; bankruptcy disputes; and disputes involving rights over state or municipal property, patents, or trademarks. Disputes about the registration of patents or trademarks cannot be submitted to foreign arbitration. Sole arbitrators must have higher legal education. In arbitral tribunals, only the presiding arbitrator must have higher legal education. The Domestic Arbitration Law, unlike the International Arbitration Law, allows parties to waive their right to appeal the arbitral award in court. Under both laws, parties are free to choose the language of the proceedings and can be represented by foreign lawyers. There are more than 200 arbitral institutions in the Russian Federation. The Arbitration Procedural Code of the Russian Federation (2002) regulates the recognition and enforcement of foreign arbitral awards. Russian courts often refuse to recognize or enforce arbitral awards on public policy grounds. The courts have not developed a consistent pro-arbitration policy. State arbitration courts have jurisdiction to enforce arbitration awards, which takes roughly 6 weeks (assuming there is no appeal). Russia has not ratified the ICSID Convention.

For more information on this country, please go to http://www.investingacrossborders.org

144

Investing Across Borders 2010

Rwanda IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Without any legal ownership restrictions on the 33 sectors covered by the Investing Across Sectors indicators, Rwanda is one of the most open countries to foreign equity ownership. In practice, though, a number of sectors are characterized by monopolistic or oligopolistic market structures dominated by publicly owned enterprises, making it difficult for foreign investors to enter. The electricity and transportation sector groups, as well as the media industry, in particular, are dominated by monopolies.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

60.5

51.5

64.5

89.2

76.6

82.1

87.5

77.3

92.2

38.5

33.9

41.3

50.0

58.5

70.6

10 99

72 151

61 140

93.1

82.4

85.2

80.1

73.8

70.6

73.3

55.9

57.9

With only 3 procedures and 4 days, the process of establishing a foreign-owned limited liability company (LLC) in Rwanda (Kigali) is among the fastest of the countries surveyed by IAB globally. A foreign company requires no additional procedure other than obtaining a trade license if it wishes to engage in international trade, which takes only 1 day. Applying for an investment approval is optional for foreign investors unless they wish to benefit from the various investment incentives provided by the law. Rwanda offers an efficient â&#x20AC;&#x153;one-stop shop,â&#x20AC;? the Rwanda Development Board, which centralizes start-up procedures and handles company registrations. The business registration process is not yet available online. Of the 21 Sub-Sahara African countries surveyed by IAB only Mauritius allows electronic registration. Foreign investors can open and maintain commercial foreigncurrency bank accounts in Rwanda. Rwanda does not impose a minimum capital requirement on investors, nor does it impose any restrictions on the composition of the boards of directors of wholly foreign-owned companies.

All land in Rwanda belongs to the government. It is possible, however, to lease land. If the land is developed in accordance with statutory requirements, the lessee may then have the option to buy the land. Both privately and publicly held land may be leased. The lease of publicly held land requires approval from the relevant public authority. Government bureaucracy may delay this process. The process of leasing public land is faster if a foreign company accesses land through the Rwanda Development Board. Land can be leased for a maximum duration of 49 years. There are no restrictions on the amount of land that may be leased. Lease contracts offer the lessee the right to transfer, subdivide, or sublease the land, subject to the terms of the contract. Most landrelated information in Kigali may be found in the Registrar of Lands.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Law No. 005/2008 on Arbitration and Conciliation in Commercial Matters regulates both domestic and international arbitrations in Rwanda. It is based on the UNCITRAL Model Law. Commercial matters can generally be submitted to arbitration. Parties are free to select arbitrators of any gender, nationality, or professional qualifications in both domestic and international arbitrations, and foreign counsel may represent the parties in arbitration proceedings. Online arbitration is not available in Rwanda. Moreover, although there is an arbitral institution in Rwanda, the Rwandan Arbitration and Expertise Centre, it does not currently administer arbitrations. A new arbitration center is planned for the Private Sector Federation. Practitioners report that the lack of a domestic arbitral institution is a major impediment to domestic and international arbitration. Rwandan courts generally uphold arbitration agreements and support arbitration. Arbitration awards are enforced in the High Court, and decisions that uphold or deny enforcement can be appealed to the Supreme Court. On average, it takes around 15 weeks to enforce an arbitration award rendered in Rwanda, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 15 weeks for a foreign award. Domestic litigation is the preferred technique for resolving disputes involving the state.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

145

Saudi Arabia IAB global average (87 countries)

IAB regional average (5 countries)

Country score

Indicators

Middle East and North Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 0.0 78.8 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 75.0 95.0 96.6 Telecommunications 70.0 84.0 88.0 Electricity 100.0 68.5 87.6 Banking 60.0 82.0 91.0 Insurance 60.0 92.0 91.2 Transportation 40.0 63.2 78.5 Media 0.0 70.0 68.0 Sector group 1 (constr., tourism, retail) 91.7 94.9 98.1 Sector group 2 (health care, waste mgt.) 50.0 90.0 96.0

Saudi Arabia has opened up many sectors of its economy to foreign investors, with overt statutory ownership restrictions, however, on a number of industries, as specified by a “negative list” published by the Saudi Arabian General Investment Authority (SAGIA). In particular, sectors such as mining, oil and gas, air transportation (domestic and international), railway freight transportation, health care, publishing, and media (television broadcasting and newspaper publishing) are closed to foreign equity ownership. The mining and oil and gas industries operate under a monopolistic market structure dominated by a publicly owned company. In accordance with the country’s commitments to the WTO, foreign capital participation in the financial services sectors is allowed up to a maximum share of 60%. Unlike most other countries in the Middle East and North Africa region, Saudi Arabia does not impose any legal ownership restrictions on the electricity sector (including the generation, transmission, and distribution of electric energy).

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

35.0

58.6

64.5

64.3

78.3

82.1

50.0

68.8

92.2

33.3

46.4

41.3

50.0

66.0

70.6

25 60

59 123

61 140

70.0

82.0

85.2

30.4

65.5

70.6

28.6

48.7

57.9

With 6 procedures and 21 days, the process of establishing a foreign-owned subsidiary in Riyadh, Saudi Arabia, is in line with the IAB regional average for the Middle East and North Africa region and the IAB global average. Limited liability companies (LLCs) require at least 2 shareholders and a maximum of 50. In addition to the procedures required of domestic companies, foreign companies must authenticate and legalize the parent company’s documentation in the Saudi consulate in its country of origin and in the Ministry of Foreign Affairs and Ministry of Justice in Saudi Arabia. In addition, foreign companies must file for a foreign investment license with the Saudi Arabian General Investment Authority (SAGIA). The license usually takes 15 days to obtain. SAGIA requires foreign companies to hire a local counsel or law firm throughout the establishment process. The “golden package,” an expedited incorporation process, is offered to companies for an additional fee. This service, offered by SAGIA, reduces incorporation time by 50%. Business registration applications are downloadable online. Foreign companies are allowed to open and maintain foreign currency bank accounts. Minimum capital requirements for LLCs have been abolished.

Foreign ownership of land is not a general right and must be linked to a particular project. Before buying land, a foreign company must obtain a license from the investment authority. The sale of public land is rare and a private owner seeking to sell land needs approval from the industrial property authority. Foreign companies seeking to acquire land for industrial purposes may find it cheaper to lease publicly held land. Publicly held land may be leased for a renewable period of 25 years. Lease contracts offer the lessee the right to subdivide and sublease the land. It is not possible to mortgage a leasehold interest. There is no central registration system for land rights. A notary public marks the title deeds, which are held by the landowner. There is little land-related information available, apart from what one can get from the seller.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Arbitration in Saudi Arabia is regulated by Royal Decree No. M/46-12 Rajab 1403/1982. The law is brief (25 articles) and not very comprehensive: it does not provide definitions of basic arbitration terms (such as arbitration award and enforcement) nor does it regulate the legal regime of the arbitration agreement, interim measures, and preliminary orders. The law does not distinguish between domestic and international, or between commercial and other types of arbitration. Generally, all commercial matters are arbitrable. Public entities are not entitled to resort to arbitration unless expressly authorized by the Prime Minister. The arbitration law mandates that the arbitrator must be a Saudi national or a Muslim foreigner (IRLA Art. 3). The law does not explicitly state whether or not a woman can be selected as an arbitrator; the general practice, however, follows the Hanbali school of thought, which believes that arbitrators must be male. Parties may only choose from a list of arbitrators prepared by agreement between the Ministers of Justice and Commerce and the head of the Board of Grievances (Art. 5 of ILRA). Arbitration hearings must be public, unless one of the arbitrators requests otherwise, and be conducted in Arabic. Arbitral proceedings must be conducted in accordance with Islamic law and any applicable regulations (Article 39 of the Implementing Rules). No legal provisions allow for court assistance with interim measures and evidence taking during arbitration proceedings. Both domestic and foreign awards are enforced by the Board of Grievances, Commercial Section, which can take 56 weeks.

For more information on this country, please go to http://www.investingacrossborders.org

146

Investing Across Borders 2010

Senegal IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Senegal is one of the most open countries to foreign equity ownership, as measured by the Investing Across Sectors indicators. All of the 33 sectors covered by the indicators are fully open to capital participation. The electricity transmission and distribution sectors are dominated by monopolistic market structures of publicly owned enterprises, potentially representing an obstacle to foreign investors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

45.0

51.5

64.5

85.6

76.6

82.1

87.5

77.3

92.2

50.0

33.9

41.3

75.0

58.5

70.6

33 101

72 151

61 140

89.9

82.4

85.2

85.1

73.8

70.6

98.8

55.9

57.9

It takes 5 procedures and 10 days to establish a foreign-owned limited liability company (LLC) in Senegal (Dakar). This process is among the fastest in Sub-Saharan Africa and much faster than the IAB global average. In addition to the procedures required of a domestic company, a foreign company that wants to engage in international trade must obtain an import-export card for trading purposes from the investment promotion agency (APIX) or a business court. Entrepreneurs register their company at the one-stop shop and obtain a tax registration; commercial registration; company identification number; and labor, social security, and pension fund registrations. This takes only 2 days. According to a directive of the Economic Community of West African States (ECOWAS), companies in Senegal are not allowed to open bank accounts in foreign currency unless they get approval from the Senegal Ministry of Finance and the Central Bank of West Africa. This approval must be renewed yearly. The minimum capital requirement of XOF 1,000,000 (~$2,000) is applicable for all OHADA (Organization for the Harmonization of Business Law in Africa) member states. It must be paid in full for the incorporation of an LLC.

Foreign companies have the option to lease or buy privately or publicly held land. The most common option for foreign companies seeking to acquire land in Dakar is the lease of public land. Most land is publicly held and the sale of public land, though legally possible, is extremely rare in practice. Before public land can be acquired, it must be reclassified as private. Land in the public domain can only be subject to a use permit issued by the relevant administrative authority. The process of leasing public land can be quite lengthy. Land may be leased for a maximum duration of 99 years. Lease contracts offer the lessee the right to subdivide, sublease, or mortgage the leased land, subject to the terms of the lease contract. Government approval may be required for the lease of publicly held land. There are no restrictions on the amount of land that may be leased. Most landrelated information in Dakar can be found in the cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Senegal is a party to the OHADA Treaty (Organisation pour l’Harmonisation en Afrique du Droit des Affaires) and arbitration is therefore governed by the Uniform Act on Arbitration. The act was signed on March 11, 1999 and entered into force 90 days later. The Uniform Act supersedes the existing national laws on arbitration. The act is supplemented by the New Civil Procedure Code, which also regulates the courts’ capacity to provide assistance to arbitral proceedings. The principal arbitral institution under OHADA is the Common Court for Justice and Arbitration (CCJA) in Abidjan, Côte d’Ivoire. Senegal has also adopted various laws and provisions to develop arbitration in line with the OHADA Uniform Act. Senegal’s main arbitral institution is the Center for Arbitration, Mediation, and Conciliation (CAMC) at the Chamber of Commerce, Industry, and Agriculture of Dakar (CCIAD), established in 1998. Senegal has ratified the 1958 New York Convention and the ICSID Convention. On average, it takes around 11 weeks to enforce an arbitration award rendered in Senegal, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 11 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

147

Serbia IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 96.2 92.0 Agriculture and forestry 100.0 97.5 95.9 Light manufacturing 100.0 98.5 96.6 Telecommunications 100.0 96.2 88.0 Electricity 100.0 96.4 87.6 Banking 100.0 100.0 91.0 Insurance 100.0 94.9 91.2 Transportation 100.0 84.0 78.5 Media 74.5 73.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Of the 33 sectors covered by the Investing Across Sectors indicators, 32 are fully open to foreign capital participation in Serbia. The only exception is the TV broadcasting industry. According to the Law on Broadcasting (Zakon o radio difuziji), foreign ownership in private TV broadcasting companies is limited to a maximum of 49% and participation in public media companies is prohibited.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

84.2

76.8

64.5

78.6

82.9

82.1

100.0

97.6

92.2

45.0

50.3

41.3

75.0

78.9

70.6

67 177

43 133

61 140

95.4

82.5

85.2

71.4

69.7

70.6

90.2

64.4

57.9

It takes 8 procedures and 14 days to establish a foreign-owned limited liability company (LLC) in Serbia (Belgrade), faster than the IAB average for Europe and Central Asia, and much faster than the IAB global average. In addition to the procedures required of a domestic company, a parent company establishing a subsidiary in Serbia must authenticate and translate its documents abroad. Under the Business Registration Law, company registration is transferred from the commercial courts to the Serbian Business Registers Agency (SBRA). The SBRA now issues the registration number, statistical code, registration certificate, tax identification number, pension fund registration, health fund certificates, and employment registration. The law requires registration to be completed within 5 business days, but it usually takes only 3. Companies in Serbia are free to open and maintain bank accounts in foreign currency, although they must also have an account in RSD. The minimum capital requirement is RSD 50,000 (~$670), although only 50% of that must be paid before registration. The rest is payable within 2 years of incorporation.

Companies seeking to access land have the option to lease or buy private land. Since the recent adoption of a new Constitution, the purchase of public land is no longer legally prohibited. In practice, however, it is extremely rare. Publicly owned land can be leased by auction. It is not possible to obtain a construction permit for leased landâ&#x20AC;&#x201D;a foreign company must have a real property interest in the land. The maximum duration for leases is 99 years. Lease contracts offer the lessee the right to transfer, subdivide, sublease, or mortgage the leased land, subject to the terms of the contract and local planning laws. Leases for publicly held land cannot be transferred. Establishing a mortgage over the lease of publicly held land is not permitted. Most land-related information may be found in the land registry and cadastre. The land registry and cadastre are currently being consolidated electronically.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Serbian Law on Arbitration (2006) applies to both international and domestic arbitration. The law contains mandatory provisions on arbitration costs. All commercial disputes are arbitrable except those involving immovable property located in Serbia and those involving ownership or other property rights over aircrafts and ships. Under Serbian law, even if the parties have not previously concluded an arbitration agreement, one party could, by written request, initiate an arbitration procedure whereby the other party must approve such action or just engage itself in the process. The law stipulates that until the parties determine the language of the proceedings, statements of claim and defense and other written submissions may be made in the language of the main contract or in Serbian (Article 35). The law expressly states that arbitrators must be independent and impartial. Foreign parties in an arbitration procedure under the Rules of the Foreign Trade Arbitration Court organized within the Serbian Chamber of Commerce may be represented by foreign counsel. The law does not prohibit local parties from retaining foreign counsel. There are 2 arbitral institutions, one for domestic and another for international arbitrations. The Serbian Law on Enforcement Procedure (2004) requires the courts to assist arbitrators with provisional measures and the taking of evidence. On average, it takes around 6 weeks to enforce an arbitration award rendered in Serbia, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 11 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

148

Investing Across Borders 2010

Sierra Leone IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 95.2 92.0 Agriculture and forestry 75.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 100.0 84.1 88.0 Electricity 100.0 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 80.0 86.6 78.5 Media 100.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

In Sierra Leone, the Investment Promotion Act (2004) provides for equal treatment of foreign and domestic investors with respect to ownership of local companies. Most business sectors covered by the Investing Across Sectors indicators are fully open to foreign equity ownership. Overt statutory ownership restrictions are imposed on only a small number of industries. Foreign capital participation is prohibited in the airport and port operation sectors, in particular, as these facilities are owned and operated directly by the government through the Ministry of Transport.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

65.0

51.5

64.5

44.4

76.6

82.1

n/a

77.3

92.2

26.3

33.9

41.3

30.0

58.5

70.6

It takes 8 procedures and 43 days to establish a foreign-owned limited liability company (LLC) in Freetown, Sierra Leone, in line with the IAB global average and slightly faster than the IAB regional average for SubSaharan Africa. In addition to the procedures required of domestic companies, a foreign company establishing a subsidiary in Freetown must authenticate the documents of the parent company abroad. It must also, if it wants to engage in international trade, obtain a trade license from the Ministry of Trade and Industry, which takes about 30 days if all documents are in place. No investment approval is required. The business registration process is not yet available online. Of the 21 Sub-Sahara African countries surveyed by IAB only Mauritius allows electronic registration. Foreign investors may open and maintain commercial foreign currency bank accounts in Sierra Leone. Sierra Leone does not impose a minimum capital requirement on investors, except for investments made in specific sectors such as banking and telecommunications. Sierra Leone does not have any restrictions on the composition of the boards of directors of wholly foreign-owned companies.

210

Time to lease public land (days)

277

151

140

65.0

82.4

85.2

70.5

73.8

70.6

20.5

55.9

57.9

The law in Sierra Leone prohibits the ownership of land by foreign entities. Foreign companies seeking to acquire land may lease privately or publicly held land. The process of leasing private land is lengthy due to a burdensome process of acquiring land-related information for due diligence purposes. Public land is leased subject to approval by the relevant public authority. The approval process may take a number of months to complete. The maximum duration of leases is a renewable term of 21 years. Lease contracts offer the lessee the right to transfer, subdivide, or sublease the leased land, subject to approval from the Ministry of Lands. Mortgaging the leased land and/or using it as collateral requires approval from the relevant ministry. There are no restrictions on the amount of land that may be leased. Land-related information can be obtained from either the Office of the Registra General or from the Ministry of Lands, Country Planning, and Environment Direction of Surveys and Mapping. Much of the information is out of date and in some cases inconsistent.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Sierra Leoneâ&#x20AC;&#x2122;s Arbitration Act was enacted in 1960 and was based on the English Arbitration Act of 1950 rather than on the UNCITRAL Model Law. It makes no distinction between international and domestic arbitration. Although Sierra Leone has ratified the ICSID Convention, it is not a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. As a consequence, foreign arbitration awards are not, as a general rule, entitled to recognition and enforcement by the courts of Sierra Leone. Arbitration in Sierra Leone is conducted on an ad hoc basis, as there is no arbitral institution. The courts have adopted a general policy in favor of enforcing arbitration agreements and awards in Sierra Leone. There is no express limit to the grounds for refusing recognition and enforcement of awards in the act. This suggests that the courts in Sierra Leone could rely on further grounds than those contained in the UNCITRAL Model Law, including, for example, error of law or a lack of substantial evidence. Given the lack of practice, private practitioners found it difficult to estimate the length of time for enforcement proceedings, but suggested it would take a minimum of 6 months for awards rendered in Sierra Leone or in a foreign country.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

149

Singapore IAB global average (87 countries)

IAB regional average (10 countries)

Country score

Indicators

East Asia and the Pacific

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 75.7 92.0 Agriculture and forestry 100.0 82.9 95.9 Light manufacturing 100.0 86.8 96.6 Telecommunications 100.0 64.9 88.0 Electricity 100.0 75.8 87.6 Banking 100.0 76.1 91.0 Insurance 100.0 80.9 91.2 Transportation 47.4 63.7 78.5 Media 27.0 36.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 91.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 84.1 96.0

Of the 33 sectors covered by the Investing Across Sectors indicators, 28 are fully open to foreign equity ownership in Singapore, including manufacturing and primary industries. The country imposes ownership restrictions on a number of service sectors. The acquisition of shares in a port and airport operation company, in particular, is limited to a maximum of 5%. The Broadcasting Act of Singapore stipulates that foreign capital participation in television broadcasting channels is limited to a less-than-50% stake. Private ownership (domestic or foreign) of newspapers is limited to 5%. Furthermore, the Newspaper and Printing Presses Act requires the directors of newspaper companies to be Singaporean citizens. Although the law does not restrict foreign capital participation in the electricity transmission and distribution sectors, their monopolistic market structures dominated by publicly owned enterprises, make it difficult for foreign companies to engage.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

79.0

57.4

64.5

100.0

84.9

82.1

100.0

83.3

92.2

55.0

35.1

41.3

80.0

67.5

70.6

With only 4 procedures and 9 days, the process of establishing a foreign-owned limited liability company (LLC) in Singapore is among the fastest of the countries surveyed by IAB and the fastest among IAB countries in the East Asia and the Pacific region. A foreign company that wants to engage in international trade requires no additional procedure other than registering with Singapore customs as a manufacturer to obtain an ordinary or preferential certificate of origin. Investment approval is not required unless the foreign company applies to the Economic Development Board for financial assistance. Application for business registration with the Singapore Accounting and Corporate Regulatory Authority (ACRA) can be filed and monitored online. Foreign companies are free to open and maintain bank accounts in foreign currency. There is no minimum paid-in capital requirement, but at least 1 subscriber share must be issued for valid consideration at incorporation.

Time to lease public land (days)

151

140

94.9

83.8

85.2

81.8

66.1

70.6

93.5

46.6

57.9

Foreign companies may lease or buy privately or publicly held land in Singapore. There are some restrictions on foreign ownership of property. Land is scarce in Singapore. Privately held industrial land is thus uncommon in Singapore. A foreign company wishing to lease land from a private owner may have to apply for a change of use of the land from residential to industrial. Most of the industrial public land in Singapore is held by Jurong Town Corporation, a statutory board of the Singapore government. Leases for durations greater than 7 years must be registered. Lease contracts can be held for a maximum duration of 90 years. Lease contracts offer the lessee the right to subdivide, sublease, or mortgage the leased land, subject to the terms of the contract. In the case of publicly held land, approval may be required from the relevant authority. Generally, industrial land may not be transferred until it has been developed. Most land-related information can be obtained from the Singapore Land Authority.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The International Arbitration Act (1994) regulates international arbitration in Singapore. Domestic arbitration is regulated by the Arbitration Act (2001). Although the international arbitration act is heavily based on the UNCITRAL Model Law, there are a few significant differences between the 2: the act adopts a broader definition of international arbitration, while the Model Law makes it mandatory for the court to stay legal proceedings pending arbitration. The default number of arbitrators mandated by the act is 1; the Model Law requires 3. Finally, the International Arbitration Act allows for an appeal on any question of law arising from an award made in the proceedings, a provision that is absent in the Model Law. Arbitration agreements must be in writing. Oral agreements and arbitration agreements that can be inferred through conduct are not enforceable. The Singapore International Arbitration Centre is the major arbitral institution and its increasing caseload reflects Singaporeâ&#x20AC;&#x2122;s policy of encouraging the use of alternative modes of dispute resolution, including arbitration. On average, it takes around 8 weeks to enforce an arbitration award rendered in Singapore, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 7 weeks for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

150

Investing Across Borders 2010

Slovak Republic IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 100.0 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 100.0 93.8 96.6 Telecommunications 100.0 89.9 88.0 Electricity 100.0 88.0 87.6 Banking 100.0 97.1 91.0 Insurance 100.0 100.0 91.2 Transportation 79.6 69.2 78.5 Media 100.0 73.3 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 91.7 96.0

The Slovak Republic has opened the majority of the sectors of its economy to foreign ownership. As a notable exception, ownership restrictions still exist on the domestic and international air transportation industries. As in the other European Union member countries, foreign ownership in these sectors is limited to 49% for investors from outside of the European Economic Area (EEA). Foreign capital participation is not restricted by law in the electricity transmission sector, but its monopolistic market structure, predominantly publicly owned, together with a high perceived difficulty of obtaining the required operating license make it difficult for foreign companies to engage.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

92.0

77.8

64.5

84.6

92.2

82.1

100.0

92.2

61.1

52.5

41.3

75.0

84.2

70.6

Time to lease private land (days)

Time to lease public land (days)

140

93.1

94.2

85.2

85.7

83.3

70.6

88.5

77.6

57.9

It takes 8 procedures and 18 days to establish a foreign-owned limited liability company (LLC) in Bratislava, Slovak Republic, faster than the regional IAB average for high-income OECD countries and much faster than the IAB global average. In addition to the procedures required of a domestic company, a foreign-owned company establishing a subsidiary must provide a translated and legalized copy of the incorporation documents of the parent company abroad. Legalization is not a requirement if the country of the parent company has entered into a bilateral agreement on legal aid with the Slovak Republic, or if the country is a party to the Hague Apostille Convention. In the latter case, an apostille of the translated documents suffices. In addition, the foreign company must report any foreign direct investment that exceeds 700,000 to the National Bank of Slovakia. Registration forms for the County Registry Court may be downloaded and submitted online. The legal time limit for registration is 5 business days. Foreign companies are free to open and maintain bank accounts in foreign currency. The minimum paid-in capital requirement in the Slovak Republic is 5,000, of which 50% must be paid in cash upon formation of the company. If the company is established by a sole partner, the registered capital must be paid in full prior to registration in the Commercial Register.

Foreign companies have the option to lease or buy privately or publicly held land. It is not possible to construct buildings on state-owned land that is leased, except in exceptional circumstances. The purchase of public land is typically associated with large investment projects supported by the government. The purchase of stateowned land is subject to various conditions stipulated by the Act on Administration of State-owned Property. The maximum statutory duration of a lease is not regulated by law. However, the cadastre only registers lease contracts of durations greater than 5 years. The registration of the lease has only a declaratory effect and does not affect the validity and effectiveness of the contract. There is a fast-track option for land registration, which takes 15 days and is commonly used. Lease contracts offer the lessee the right to sublease and/or mortgage the leased land, subject to the terms of the contract. Most land-related information can be found in the general cadastre of immovables.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Act no. 244/2002 governs arbitrations taking place in the Slovak Republic. It adopts many of the provisions in the UNCITRAL Model Law. However, it governs both domestic and international arbitrations, which are treated in the same manner. Furthermore, it covers not only commercial arbitration, but also extends to civil law. Arbitration agreements must be in writing. Many types of commercial disputes are arbitrable except those relating to legal title over real estate, bankruptcy, or the enforcement of judgments. Parties are free to select arbitrators of any gender, nationality, or professional qualifications. The Act grants arbitral tribunals the power to issue interim measures during arbitration proceedings, and states that interim relief can only be sought in court prior to arbitration. Although the Arbitration Act does not impose any restrictions on the appointment of foreign counsel, local advocacy laws generally require lawyers to be admitted to the Slovak Bar or be registered as European Union attorneys in order to represent parties in domestic arbitrations. Several institutions administer arbitration in the Slovak Republic, including the Court of Arbitration of the Slovak Chamber of Commerce and Industry. The only difference between domestic and international arbitrations is in the recognition and enforcement of arbitral awards. If an arbitration award is rendered in a foreign language, it must be translated into Slovak prior to the enforcement proceedings. On average, it takes around 6 weeks to enforce an arbitration award, from filing an application to a writ of execution attaching assets (assuming there is no appeal).

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

151

Solomon Islands IAB global average (87 countries)

IAB regional average (10 countries)

Country score

Indicators

East Asia and the Pacific

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 75.7 92.0 Agriculture and forestry 100.0 82.9 95.9 Light manufacturing 100.0 86.8 96.6 Telecommunications 100.0 64.9 88.0 Electricity 100.0 75.8 87.6 Banking 100.0 76.1 91.0 Insurance 100.0 80.9 91.2 Transportation 100.0 63.7 78.5 Media 100.0 36.1 68.0 Sector group 1 (constr., tourism, retail) 100.0 91.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 84.1 96.0

In terms of overt statutory ownership restrictions on foreign capital as measured by the Investing Across Sectors indicators, Solomon Islands is one of the most open countries to foreign direct investment (FDI). All of the 33 industry sectors covered by the indicators are fully open to foreign capital participation. The country is thus an example of the fact that openness of sectors to foreign equity ownership is a necessary, but not sufficient condition for attracting FDI. Several determinants are at play simultaneously, including market size, quality of infrastructure, political stability, and economic growth potential, with openness to foreign ownership being only one among those factors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

48.0

57.4

64.5

91.1

84.9

82.1

n/a

83.3

92.2

15.8

35.1

41.3

2.5

67.5

70.6

Time to lease private land (days)

138

Time to lease public land (days)

168

151

140

40.0

83.8

85.2

0.0

66.1

70.6

0.0

46.6

57.9

It takes 10 procedures and 66 days to establish a foreign-owned limited liability company (LLC) in Honiara, Solomon Islands, about average for IAB countries in East Asia and the Pacific and the IAB global average. A foreign company establishing a subsidiary in Honiara must authenticate the documents of the parent company abroad. In addition, it must obtain a foreign investment registration certificate from the foreign investment department, which takes on average 7 days and can be done online. If said certificate is not granted, the foreign investor can appeal to the Facilitation Committee under the Ministry of Commerce or to the Minister of Commerce directly. There are no electronic services for company registration. Foreign companies are not allowed to open bank accounts in foreign currency without approval from the Central Bank of Solomon Islands, which takes 7 days to obtain, if granted. There is no minimum paid-in capital requirement for establishing an LLC in Honiara.

It is not possible for foreign companies to own land in the Solomon Islands. They can, however, lease both publicly and privately held land. Land is scarce. Foreign companies seeking to acquire land may, therefore, only be able to acquire customarily held land. The process of acquiring customarily held land may be lengthy, as it requires identifying who is responsible for the land and involves extensive community consultations. Land may be leased for a maximum duration of 75 years. There are no restrictions on the amount of land that may be leased. Lease contracts offer the lessee the right to subdivide, sublease, or mortgage the leased land or use it as collateral, subject to the terms of the contract. Approval from the Commissioner of Lands is required to lease publicly held land. It is extremely difficult to find land-related information in Honiara. Although a land registry exists, most land-related information is not available to the public and it is unclear where the information may be obtained.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Solomon Islands enacted an Arbitration Act on 1 December 1987, broadly modeled on English arbitration legislation. The Arbitration Act includes detailed provisions regarding the appointment of arbitrators. The role of the courts in supporting the arbitral process is expressly provided for, requiring parties to sue arising out of a writ of subpoena to obtain documents. The Solomon Islands is not party to the New York Convention and so enforcement is left to the discretion of the High Court and, if this is challenged, to the Court of Appeal. It has, however, ratified the ICSID Convention. In practice, the Arbitration Act is rarely used, as there are no arbitrators on the ground. Consequently, parties tend to resort to court litigation or outside-court settlement. Although the Law Commission has been pushing for new legislation which would be favorable to arbitration, this has not yet come to fruition. Due to the lack of practice, local legal practitioners were not able to estimate the time periods for enforcing an arbitration award, whether rendered in the Solomon Islands, or in a foreign country.

For more information on this country, please go to http://www.investingacrossborders.org

152

Investing Across Borders 2010

South Africa IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 74.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 70.0 84.1 88.0 Electricity 100.0 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 100.0 87.3 91.2 Transportation 100.0 86.6 78.5 Media 60.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Several industry sectors covered by the Investing Across Sectors indicators are subject to statutory foreign equity ownership restrictions in South Africa. Most notably, foreign capital participation in the mining as well as in the oil and gas industry is limited to a maximum of 74% by the Mineral and Petroleum Resources Development Act 28 of 2002. Furthermore, the share of foreign capital in companies owning or operating telecommunications infrastructure or providing telecommunications services must not exceed 30% in order to obtain the required operating licenses. In the media industry, foreign ownership of nationwide TV channels is limited to 20%. In addition to these overt statutory ownership restrictions, monopolistic market structures dominated by publicly owned enterprises further inhibit FDI in the electricity industry and in the port operation and railway freight transportation sectors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

79.0

51.5

64.5

84.5

76.6

82.1

100.0

77.3

92.2

47.4

33.9

41.3

85.0

58.5

70.6

42 304

72 151

61 140

82.4

85.2

79.0

73.8

70.6

94.5

55.9

57.9

It takes 8 procedures and 65 days to establish a foreign-owned limited liability company (LLC) in Johannesburg, South Africa, slower than both IAB regional average for Sub-Saharan Africa and the IAB global average. In addition to the procedures required of domestic companies, a foreign company establishing a subsidiary and wishing to engage in international trade must obtain a trade license from the Department of Trade and Industry, which usually takes 38 days. An authorized dealer (one of the 4 biggest commercial banks in South Africa) must endorse as “nonresident” the parent company’s share certificate for shares held in the subsidiary. This process takes 5 days. The business registration documents are available online, but the application process is not yet available online. In South Africa, there are no regulatory restrictions on the composition of the boards of the directors or on the appointment of managers. The Broad-Based Black Economic Empowerment (BBBEE) initiative, while not enforceable, affects the type of business a company may be entitled to engage in. BBBEE urges companies to have meaningful representation of previously disadvantaged groups. If a foreign company is involved in import and export transactions as well as services, it is allowed to hold a Customer Foreign Currency (CFC) account. Only authorized dealers may initiate transactions on a CFC account. Foreign currency accruals from exports may be held in the CFC account for a maximum of 180 days, during which the amount can be set off against an import transaction. At the end of the 180-day period, any unutilized balance must be converted to rand. There is no minimum capital requirement for South African companies, only a nominal fee of $1.

Foreign companies seeking to acquire land In Johannesburg have the option to lease or buy privately or publicly held land. Private land can be bought through negotiations with the owner. Buying public land is a more complex process. It requires negotiating with the public body holding the land, obtaining approval from the relevant authority, and complying with a number of statutes limitations on the power of public authorities to lease land. Lease contracts of privately held land offer the lessee the right to subdivide, sublease, or mortgage the leased land or use it as collateral, subject to the terms of the contract. There are no restrictions on the amount of land that may be leased. There is no statutory maximum duration for leases. Land-related information can be found in the land registry and cadastre, which are linked and coordinated to share data. Johannesburg has a land information system (LIS) and geographic information system (GIS) in place.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration Act No. 42 of 1965 regulates arbitration in South Africa. The legislation makes no distinction between domestic and international arbitration. The Arbitration Act is not based on the UNCITRAL Model Law, although many of the provisions are similar. The Arbitration Act is less prescriptive than the Model Law. For example, the Arbitration Act provides arbitrators with more powers to rule on issues of procedure, and the grounds and procedures for challenging the appointment of an arbitrator are not specified in the Arbitration Act to the same degree as in the Model Law. All commercial matters may be resolved by way of arbitration. The law does not provide for severability of the arbitration agreement, although the parties may agree to this separately. Arbitration agreements must be in writing. Faxes or other electronic forms of communication do not necessarily constitute a “written agreement.” Parties are free to elect arbitrators of any nationality, gender, or professional qualifications, and they may also select foreign counsel to represent them in arbitration proceedings. Online arbitration is not yet an option. There are at least 2 active arbitral institutions in South Africa, including the Arbitration Foundation of Southern Africa. There is an extensive arbitration practice in South Africa. Domestic courts are empowered to assist arbitral tribunals with interim measures or the production of documents. Arbitration awards are enforced in the High Court of South Africa. On average, it takes around 8 weeks to enforce an arbitration award rendered in South Africa, from filing an application to a writ of execution attaching assets (assuming there is no appeal) or 6 weeks in a foreign country.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

153

Spain IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 100.0 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 100.0 93.8 96.6 Telecommunications 100.0 89.9 88.0 Electricity 100.0 88.0 87.6 Banking 100.0 97.1 91.0 Insurance 100.0 100.0 91.2 Transportation 39.6 69.2 78.5 Media 50.0 73.3 68.0 Sector group 1 (constr., tourism, retail) 100.0 100.0 98.1 Sector group 2 (health care, waste mgt.) 100.0 91.7 96.0

Of the 33 sectors covered by the Investing Across Sectors indicators, 28 are fully open to foreign equity ownership in Spain, including manufacturing and primary industries. The country imposes ownership restrictions on a number of service sectors. Like the other European Union countries covered by the indicators, Spain imposes restrictions on the air transportation sector, in which foreign capital participation is limited to 49%. This equity restriction, however, only applies to investors from countries outside of the European Economic Area (EEA). Airport and port operation are closed to foreign capital participation. All commercial airport facilities in Spain are currently owned and operated by the publicly owned company AENA and the major ports are controlled and managed by the Spanish port authorities. Foreign capital participation is not allowed in terrestrial television broadcasting companies. This restriction does not apply to cable and satellite television channels.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

71.0

77.8

64.5

100.0

92.2

82.1

100.0

92.2

61.1

52.5

41.3

90.0

84.2

70.6

32 90

50 88

61 140

97.4

94.2

85.2

76.1

83.3

70.6

75.3

77.6

57.9

It takes 13 procedures and 61 days to establish a foreign-owned limited liability company (LLC) in Madrid, Spain. This process is the longest among IAB countries in the high-income OECD group and longer than the IAB global average. In addition to the procedures required of a domestic company, a foreign-owned company establishing a subsidiary in Spain must provide authenticated and legalized powers of attorney, a certificate of good standing, or a commercial excerpt from the country of the parent company ascertaining its existence. These documents must be reviewed and notarized in Spain. A company engaged in international trade must also obtain a trade license, which usually takes 10 days. All foreign investments subject to the rules of Royal Decree 664/1999 must be reported after incorporation to the Foreign Investment Registry at the Ministry of Economy. Only investments from tax havens must be reported prior to incorporation. Registration forms may be downloaded online, but the registration process itself is not yet available online. The legal time limit for registration is 15 business days. Foreign companies are free to open and maintain bank accounts in foreign currency. The minimum paid-in capital requirement to establish an LLC in Spain is 3,005, which must be paid in full at incorporation.

Foreign companies seeking to acquire land have the option to lease or buy privately or publicly held land. Private land may be bought by preparing a notarized public deed. Public land must be reclassified as private before it can be leased or sold. The procedure must also involve a public competition either through tender or auction. Pursuant to investment rules, a foreign company must declare the acquisition of land if the investment exceeds a certain statutorily prescribed limit. Registration of leases is not mandatory. Information on land is available only if the land is registered. There are no restrictions on the amount of land that may be leased. There is also no maximum duration for lease contracts. Lease contracts offer the lessee the right to subdivide, sublease, mortgage the leased land or use it as collateral, subject to the terms of the contract. Land-related information can be found in the land registry and cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration Act (2003) governs arbitrations in Spain and applies to both domestic and international arbitrations. It is substantively based on the UNCITRAL Model Law. The act defines international, but not domestic arbitration. Commercial matters may be resolved by arbitration. Arbitration agreements must be in writing. Parties are restricted in electing arbitrators in domestic arbitrations, who must have a law degree and be licensed to practice in Spain. In international arbitrations, these restrictions do not apply. Moreover, parties are free to choose foreign lawyers to represent them in arbitration proceedings. There is currently no online arbitration in Spain, although new initiatives are being discussed. The Spanish Arbitration Act stipulates that, unless the parties have agreed otherwise, the arbitral tribunal should render its award within 6 months of submission of the statement of defense. The arbitrators may extend this period by 2 months. Although the law provides for judicial assistance during arbitration proceedings, in practice this is rarely sought. On average, it takes around 18 weeks to enforce an arbitration award rendered in Spain, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and the same for a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

154

Investing Across Borders 2010

Sri Lanka IAB global average (87 countries)

IAB regional average (5 countries)

Country score

Indicators

South Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 40.0 88.0 92.0 Agriculture and forestry 100.0 90.0 95.9 Light manufacturing 100.0 96.3 96.6 Telecommunications 100.0 94.8 88.0 Electricity 71.4 94.3 87.6 Banking 100.0 87.2 91.0 Insurance 100.0 75.4 91.2 Transportation 60.0 79.8 78.5 Media 40.0 68.0 68.0 Sector group 1 (constr., tourism, retail) 100.0 96.7 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Within the South Asia region, Sri Lanka imposes more stringent restrictions on foreign equity ownership than most other countries measured by the indicators. Select strategic sectors, such as railway freight transportation and electricity transmission and distribution are closed to foreign capital participation. Foreign ownership in the primary sector (mining, oil and gas) is limited to a maximum of 40%. In the media industry, foreign capital participation in local television channels and newspaper companies must be less than 40%. Foreign equity participation in the retail distribution sector is only allowed if it exceeds $1,000,000.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

47.9

62.5

64.5

85.7

87.5

82.1

87.5

93.8

92.2

31.6

20.1

41.3

75.0

59.7

70.6

68 91

99 205

61 140

95.4

86.4

85.2

71.3

55.0

70.6

38.0

36.4

57.9

It takes 6 procedures and 65 days to establish a foreign-owned limited liability company (LLC) in Sri Lanka (Colombo). This is slower than both the regional IAB average for South Asia and the global average of IAB countries. In addition to the procedures required of a domestic company, a foreign company establishing a subsidiary in Sri Lanka must authenticate the parent companyâ&#x20AC;&#x2122;s documents in its country of origin. It must also obtain an investment approval from the Sri Lankan Board of Investment (BOI). Companies incorporated under the Companies Act are treated equally, regardless of whether shareholders are nationals or non-nationals. Registration at the Companies Registry takes, on average, 3 days. Online registration was recently introduced, but, in practice, the system is not widely used. Companies in Sri Lanka may open and maintain foreign currency accounts. There is no minimum capital requirement for domestic or foreign companies.

Foreign companies seeking to access land in Sri Lanka have the option to lease or buy both privately and publicly held land. However, the purchase of land by foreign companies is subject to a 100% value of the land transfer tax. A foreign company may lease publicly held land with approval from the relevant public authority. There is no clearly defined process for the lease or purchase of publicly held land. The maximum duration for leases is 50 years, although they are commonly held for 30 years. Foreign entities are limited to 50 acres when buying land. Lease contracts offer the lessee the right to transfer, sublease, or mortgage the leased land or use it as collateral, subject to the terms of the contract. Subdivision is subject to the applicable zoning laws. There are no restrictions on the amount of land that may be leased. Most land-related information can be found in the land registry. There are efforts underway to digitize the land registry.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration Act No. 11 of 1995 regulates both domestic and international arbitrations in Sri Lanka, and is based on the UNCITRAL Model Law. Other provisions regulating arbitration can be found in the Civil Procedure Code (1889). The High Court of Provinces (Special Provisions) Act (1996) governs the enforcement of arbitral awards. There is no definition of domestic or international arbitration in the legislation. Most commercial matters may be submitted to arbitration, and parties are free to select arbitrators of any nationality, gender, or professional qualifications. Only attorneys licensed to practice in Sri Lanka may represent parties in arbitration proceedings taking place in Sri Lanka. There are several arbitral institutions, including the Arbitration Centre of the Institute for the Development of Commercial Law and Practice and the Sri Lanka National Arbitration Centre. Online arbitration is not yet an available option. The efficiency of arbitration is hindered by its interaction with overburdened domestic courts, and there are significant delays in enforcing arbitration awards. Enforcement proceedings are commenced in the High Court. On average, it takes around 103 weeks to enforce an arbitration award, from filing an application to a writ of execution attaching assets (assuming there is no appeal). Unlike in many countries, the longest part of the enforcement proceedings is the time it takes from the first hearing in enforcement proceedings to the first instance court decision (1 year).

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

155

Sudan IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 75.0 95.2 92.0 Agriculture and forestry 75.0 97.6 95.9 Light manufacturing 87.5 98.6 96.6 Telecommunications 50.0 84.1 88.0 Electricity 50.0 90.5 87.6 Banking 50.0 84.7 91.0 Insurance 50.0 87.3 91.2 Transportation 60.0 86.6 78.5 Media 0.0 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

While Sudan has gradually opened up many sectors of its economy to foreign investors, its restrictions on foreign equity ownership are still more stringent than in most countries in Sub-Saharan Africa covered by this report. Overt statutory ownership restrictions as measured by the Investing Across Sectors indicators exist primarily in the service industries. Sectors such as railway freight transportation, airport operation, television broadcasting, and newspaper publishing are closed to foreign capital participation. Foreign ownership is also restricted in the telecommunications, electricity, and financial services sectors. In addition to those overt statutory ownership restrictions, a comparatively large number of sectors are dominated by government monopolies, including, but not limited to, those mentioned above. Those monopolies, together with a high perceived difficulty of obtaining required operating licenses, make it more difficult for foreign companies to invest.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

40.0

51.5

64.5

71.4

76.6

82.1

n/a

77.3

92.2

30.8

33.9

41.3

30.0

58.5

70.6

12 60

72 151

61 140

77.4

82.4

85.2

73.3

73.8

70.6

67.8

55.9

57.9

It takes 13 procedures and 55 days to establish a foreign-owned limited liability company (LLC) in Sudan (Khartoum). This is slower than both the IAB regional and global averages. In addition to the procedures required of domestic companies, a foreign company establishing a subsidiary must authenticate its documents abroad. It must also obtain an investment approval from the State or Federal Ministry of Investment, as stipulated in the Investment Encouragement Act (1999), which takes, on average, 17 days. Preliminary approval from the Ministry to establish a project must be obtained prior to registering the company with the Commercial Registrar Generalâ&#x20AC;&#x2122;s office at the Ministry of Investment. Registration must be made within 3 months or the preliminary approval will be cancelled. After the required steps for business registration have been completed, the final license will be issued. A feasibility study must be submitted along with the other documents to obtain final approval. If the license request is declined, an appeal can be made to the federal Council of Ministers. Sudan does not impose a minimum capital requirement on investors. Foreign companies must obtain approval from the Central Bank in order to open and maintain a foreign currency bank account in Sudan, which takes about 4 days.

The purchase of either privately or publicly held land is rare in Sudan, although there are no legal restrictions on it. The law stipulates that foreign companies may buy privately or publicly held land, subject to the consent of the Justice Minister. Foreign companies may lease privately or publicly held land. Publicly held land may be leased with approval from the public body holding the land. There are no restrictions on the amount of land that may be leased. There is no maximum duration for lease contracts. Lease contracts offer the lessee the right to renew, subdivide, sublease, or mortgage the leased land or use it as collateral, subject to the terms of the contract. These rights may be restricted for publicly held land. The lease may not be transferred to another legal entity, for example, unless approval is sought from the relevant authority. Land-related information may be found in the registry.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration Act (2005) governs arbitration in Sudan. This act is not based on the UNCITRAL Model Law. Article 7 of the Act defines arbitration as international if the headquarters of the parties to the arbitration are located in 2 different states or if the subject of arbitration is connected to more than 1 state. All commercial civil matters are considered arbitrable by law. Parties may appoint arbitrators of any nationality or professional qualifications. Sudan faces a challenge in complying with international trends that contravene Islamic Sharia principles. Online arbitration is not available, but the Khartoum Center for Commercial Arbitration administers arbitrations. Most arbitrations in Sudan, up until now, have been ad hoc, or international arbitral institutions have been used. The Arbitration Act stipulates that arbitration awards are binding and automatically enforced. When an award is not automatically enforced, written requests are sent to the District Court, and its decision can be appealed at the Court of Appeal. On average, it takes around 25 weeks to enforce an arbitration award rendered in Sudan, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 19 weeks for a foreign award. Sudan has not signed the 1958 New York Convention, but it has ratified the ICSID Convention.

For more information on this country, please go to http://www.investingacrossborders.org

156

Investing Across Borders 2010

Tanzania IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 95.2 92.0 Agriculture and forestry 100.0 97.6 95.9 Light manufacturing 100.0 98.6 96.6 Telecommunications 65.0 84.1 88.0 Electricity 100.0 90.5 87.6 Banking 100.0 84.7 91.0 Insurance 66.0 87.3 91.2 Transportation 100.0 86.6 78.5 Media 24.5 69.9 68.0 Sector group 1 (constr., tourism, retail) 100.0 97.6 98.1 Sector group 2 (health care, waste mgt.) 100.0 100.0 96.0

Of the 33 sectors covered by the Investing Across Sectors indicators, 26 are fully open to foreign equity ownership in Tanzania, including manufacturing and primary industries. The country imposes foreign equity ownership restrictions on a number of service sectors. For example, foreign capital participation in the telecommunications sector is limited to a maximum of 65%. Furthermore, Tanzanian laws specify that at least one-third of the share capital of insurance companies must be owned by Tanzanian citizens. The media industry is subject to limits on foreign ownership as well. While the Broadcasting Services Act allows a maximum of 49% foreign ownership of Tanzanian TV stations, foreign capital participation in local nationwide newspapers is prohibited.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

62.5

51.5

64.5

81.2

76.6

82.1

n/a

77.3

92.2

36.8

33.9

41.3

62.5

58.5

70.6

73 82

72 151

61 140

82.4

85.2

74.7

73.8

70.6

39.1

55.9

57.9

It takes 14 procedures and 38 days to establish a foreign-owned limited liability company (LLC) in Dar es Salaam, Tanzania. This is slower than both the IAB regional average for Sub-Saharan Africa and the IAB global average. Domestic as well as foreign-owned LLCs must have at least 2 shareholders. In addition to the procedures required of domestic companies, a foreign-owned LLC must authenticate the parent company’s documents abroad. If the company wants to engage in international trade, it must obtain a trade license from the Ministry of Industry and Trade. The Tanzania Investment Centre (TIC) offers fast-track service to establish a business in Tanzania. A foreign company is not required to obtain an investment approval in Tanzania, unless it decides to apply for TIC’s incentive certificate to benefit from tax incentives. The business registration documents are available online. Foreign companies are free to open and maintain bank accounts in foreign currency. There is no minimum capital requirement for foreign-owned LLCs unless the project is registered with TIC, in which case the minimum capital is $300,000.

In Tanzania, all land is publicly held, and the president acts as trustee. Foreign entities are prohibited from owning land, except in the following circumstances: as a right of occupancy for purposes of investment approved under the Tanzania Investment Act; as a derivative right for purposes of investment approved under the Investment Act; or as an interest in land under a partial transfer of interest by a citizen for purposes of investment approved under the Investment Act in a joint venture. Land may be leased for a maximum duration of 99 years. Lease contracts offer the lessee the right to sublease, subdivide, or mortgage the leased land or use it as collateral, subject to the terms of the contract. In the case of publicly held land, approval may be required from the Commissioner of Lands. There are regulations that govern the amount of land that may be leased. Most land-related information can be found in the registry.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Tanzania’s Arbitration Act (2002) governs domestic arbitral proceedings and enforcement of foreign arbitral awards. It is available online. The act contains certain mandatory provisions. The courts have the power to extend the time for beginning arbitral proceedings, as well as to impose other time limits. If a dispute is related to ownership of immoveable property, it cannot be arbitrated. The law provides for arbitrators to act fairly and impartially, but not independently, unlike the UNCITRAL Model Law. The law does not recognize severability of the arbitration agreement from the underlying contract, although this is accepted in practice. Arbitration agreements can be concluded in any form, as long as they are in writing. It is not possible to conduct arbitrations online in Tanzania. The National Construction Council (NCC) and the Tanzania Institute of Arbitrators administer arbitrations in Tanzania. The Arbitration Act stipulates that arbitration awards are enforceable. On average, it takes around 61 weeks to enforce an arbitration award, from filing an application to a writ of execution attaching assets (assuming there is no appeal). If an appeal is made during the enforcement process, proceedings are likely to be extremely lengthy.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

157

Thailand IAB global average (87 countries)

IAB regional average (10 countries)

Country score

Indicators

East Asia and the Pacific

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 49.0 75.7 92.0 Agriculture and forestry 49.0 82.9 95.9 Light manufacturing 87.3 86.8 96.6 Telecommunications 49.0 64.9 88.0 Electricity 49.0 75.8 87.6 Banking 49.0 76.1 91.0 Insurance 49.0 80.9 91.2 Transportation 49.0 63.7 78.5 Media 27.5 36.1 68.0 Sector group 1 (constr., tourism, retail) 66.0 91.6 98.1 Sector group 2 (health care, waste mgt.) 49.0 84.1 96.0

Among the 87 countries covered by the Investing Across Sectors indicators, Thailand’s restrictions on foreign equity ownership are among the most stringent. The majority of the 33 industry sectors measured by the indicators are subject to restrictions on foreign equity participation. The Foreign Business Act B.E.2542/1999 sets out a comprehensive list of sectors and business activities in which foreign capital is limited to a less-than-50% stake. For some of these sectors, the law offers the option to increase the foreign capital share with prior governmental approval. In addition to this general “negative list,” certain sector-specific laws impose additional restrictions. For example, foreign ownership in the telecommunications sectors (fixed-line and mobile/wireless infrastructure and services) is restricted to a maximum of 49% by the Telecommunication Act B.E. 2544/2001. Sectors that are fully open to foreign capital participation in Thailand include light manufacturing, pharmaceutical products, and food products.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

60.5

57.4

64.5

80.7

84.9

82.1

62.5

83.3

92.2

27.8

35.1

41.3 70.6

It takes 9 procedures and 34 days to establish a foreign-owned limited liability company (LLC) in Bangkok, Thailand. This is faster than both the average for IAB countries in East Asia and the Pacific and the IAB global average. In addition to the procedures required of domestic companies, a foreign company must notarize and legalize the parent company’s documents with the Thai consulate in its country of origin. If it wants to engage in international trade, the foreign company must register with the customs department. This takes only 1 day. Foreign-owned companies (per the definition of “foreigner” under the Foreign Business Act B.E. 2542 of 1999 [FBA]) are prohibited from conducting business in certain sectors listed in the aforementioned act. They are required to obtain a foreign investment license (which takes 75 days on average) in other less-restricted sectors. Foreign companies are allowed to invest in the remaining liberalized sectors, but must have a minimum capital of BHT 2,000,000 (~$61,900). Company registration with the Department of Business Development takes only 2 days and applications can be downloaded and monitored online. Foreign companies are free to open and maintain bank accounts in foreign currency. Foreign companies operating in sectors that are not listed in the FBA are subject to a minimum capital requirement of BHT 2,000,000 (~$61,900). In order to obtain a foreign business license, when required, the minimum capital depends on the company’s estimated investment as presented to the Ministry of Commerce, but must not be less than THB 3,000,000 (~$92,860).

70.0

67.5

Time to lease private land (days)

Time to lease public land (days)

128

151

140

84.9

83.8

85.2

81.8

66.1

70.6

40.8

46.6

57.9

Foreign-owned companies may buy land subject to approval from the Board of Investment. They may also buy land located on an industrial estate with investment incentives. It is possible to lease both publicly and privately held land, but the lease of publicly held land is not common. A foreign company may be required to provide evidence of its ability to fund a leasehold acquisition before a lease can be registered. Generally, lease agreements are concluded for a maximum period of 30 years, with the option to renew. Lease contracts offer the lessee the right to renew, subdivide, sublease, or mortgage the leased land or use it as collateral, subject to the terms of the contract. Approval from the Board of Investment is required to transfer land to another foreign entity. Most land-related information can be obtained from the land registry, although a power of attorney from the landowner is required before documentation relating to particular land may be inspected.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Thai Arbitration Act (2002) applies to both domestic and international arbitrations taking place in Thailand, and is based on the UNCITRAL Model Law. There are no differences between the regulation of domestic and international arbitrations. There are no restrictions on subject-matter arbitrability. Moreover, there are no restrictions on the parties’ ability to appoint an arbitrator of any nationality, gender, or professional qualifications, and arbitration proceedings can take place in any language. There are legal restrictions for foreign lawyers acting as counsel in arbitration proceedings, however. Unlike other countries in the East Asia and Pacific region, Thailand does not offer online arbitration. There are several arbitral institutions in the country that administer both domestic and international arbitrations, such as the Thai Arbitration Institute. Although the law requires courts to assist arbitral tribunals with providing interim orders, counsel has noted that, in practice, parties to an arbitration rarely submit such motions to the courts, and that the discovery process is amicable. Arbitration awards are enforced in the court of first instance, the Bangkok Civil Court, but decisions relating to enforcement can be appealed to the Supreme Court. On average, it takes around 54 weeks to enforce an arbitration award rendered in Thailand, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and the same for a foreign award. Thailand has ratified the 1958 New York Convention.

For more information on this country, please go to http://www.investingacrossborders.org

158

Investing Across Borders 2010

Tunisia IAB global average (87 countries)

IAB regional average (5 countries)

Country score

Indicators

Middle East and North Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas 100.0 78.8 92.0 Agriculture and forestry 100.0 100.0 95.9 Light manufacturing 100.0 95.0 96.6 Telecommunications 100.0 84.0 88.0 Electricity 71.4 68.5 87.6 Banking 100.0 82.0 91.0 Insurance 100.0 92.0 91.2 Transportation 100.0 63.2 78.5 Media 100.0 70.0 68.0 Sector group 1 (constr., tourism, retail) 100.0 94.9 98.1 Sector group 2 (health care, waste mgt.) 100.0 90.0 96.0

Of the 5 countries covered by the Investing Across Sectors indicators in Middle East and North Africa, Tunisia has the fewest limits on foreign equity ownership. The country has opened up the majority of the sectors of its economy to foreign capital participation. As a notable exception, the electricity transmission and distribution sectors are closed to foreign ownership. Furthermore, these industries operate under monopolistic market structures with the publicly owned company STEG as the only provider. While foreign capital participation is not restricted by law in electricity generation, the public monopoly of STEG together with a high perceived difficulty of obtaining the required operating license make it difficult for foreign investors to engage.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

71.1

58.6

64.5

85.7

78.3

82.1

87.5

68.8

92.2

36.8

46.4

41.3

80.0

66.0

70.6

Foreign investors who want to set up a subsidiary in Tunisia (Tunis) will have to allow 19 days and go through 14 different procedural steps, a process that is more complex than the IAB regional and global averages. 4 procedures are specific to foreign-owned businesses. All documents of the parent company must be translated into either Arabic or French. An investment declaration that provides basic information on the prospective project must be filed with the Guichet Unique Agency for Promotion of Investment (API). Investment in manufacturing industries, agriculture, agribusiness, public works, and certain services requires only a simple declaration of intent to invest. In addition a trade license must be obtained from customs if the company wants to engage in international trade. The company must also obtain a certificate of capital importation from the Central Bank of Tunisia. There are certain exchange control and currency regulations limiting foreign currency bank accounts (also called “professional accounts in convertible dinars”) to subsidiaries that will be exporting all of their production Professional accounts in convertible dinars may be opened, upon authorization from the Central Bank of Tunisia, by any resident individual or legal entity having foreign currency. There is no minimum paid-in capital requirement for setting up a local or foreign LLC. However, any capital investment agreed upon in the articles of association must be paid in full. There are no restrictions on the composition of the board of directors or appointment of officers in a foreign-owned subsidiary.

Time to lease public land (days)

123

140

Tunisian law states that, in Tunis, foreign companies may lease privately held land for 2 years (renewable) without authorization. If the lease contract is for longer than 2 years, the governor’s authorization is required, unless the land is located in an industrial zone that is specifically designated for industrial activities. Foreign companies seeking to access land in Tunisia also have the option to lease publicly held land and buy privately held land. It is not possible to purchase publicly owned land. The process of leasing private land is efficient and streamlined compared with the regional and global average. Lease contracts can be of unlimited duration and offer the lessee the right to subdivide, sublease, and mortgage the leased land. There are no restrictions on the amount of land that may be leased. Land-related information can be found in the land registry and cadastre, which are located in the same agency, but are not linked or coordinated to share data. Currently there is no centralized land information system (LIS) or geographic information system (GIS) in place.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max)

77.5

82.0

85.2

Ease of process index (0 = min, 100 = max)

71.4

65.5

70.6

Extent of judicial assistance index (0 = min, 100 = max)

52.3

48.7

57.9

Tunisia’s Arbitration Code (1993) is largely based on the UNCITRAL Model Law. The main difference is the addition of Article 44, which stipulates that when an arbitration award is totally or partially annulled, the court shall, upon request by all parties, decide on the merits of the dispute. This solution allows for both proceedings to take place before the same court (Tunis Court of Appeal) without filing separate claims. All commercial disputes are arbitrable except those concerning the state and public companies. Arbitration agreements inferred by conduct are legally enforceable. Parties can only choose an odd number of arbitrators. Judges and public agents can be appointed as arbitrators after obtaining prior authorization from the competent authority. Foreign lawyers can represent parties in both domestic and international arbitration proceedings taking place in Tunisia. The Supreme Court has issued several decisions that interim measures ordered by arbitrators are not subject to annulment by the court and that recognition and enforcement of arbitral awards may only be denied in very limited circumstances. The law provides for judicial assistance with orders of interim measures and taking of evidence issued by arbitrators. The Court of Appeal of Tunis is designated to enforce foreign arbitral awards. On average, it takes around 47 weeks to enforce an arbitration award rendered in Tunisia, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 51 weeks to enforce a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

159

Turkey IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas

100.0

96.2

92.0

Agriculture and forestry

100.0

97.5

95.9

Light manufacturing

100.0

98.5

96.6

Telecommunications

100.0

96.2

88.0

Electricity

78.6

96.4

87.6

Banking

100.0

91.0

Insurance

100.0

94.9

91.2

Transportation

69.4

84.0

78.5

Media

62.5

73.1

68.0

Sector group 1 (constr., tourism, retail)

100.0

98.1

Sector group 2 (health care, waste mgt.)

100.0

96.0

65.8

76.8

64.5

85.7

82.9

82.1

87.5

97.6

92.2

63.2

50.3

41.3

90.0

78.9

70.6

15 72

43 133

61 140

89.9

82.5

85.2

69.5

69.7

70.6

68.6

64.4

57.9

The Turkish Law on Foreign Direct Investment provides equal treatment for foreign and domestic investors, unless otherwise stipulated by special statutory provisions. The principle of equal treatment can be restricted on the grounds of public order, public health, or public security, in which case specific shareholding structures may be required or foreign ownership restricted. In Turkey, foreign capital participation is limited in the air transportation sectors to a maximum of 49%. The Law on Establishment and Broadcasting of Radio and Television Channels (Law No. 3984) stipulates that foreign ownership in a private radio or television channel cannot exceed 25% of the paid-in capital. A foreign investor who is already a shareholder in a private radio or television channel cannot become a shareholder of another radio or television channel. Foreign capital participation in the electricity transmission sector is prohibited. The Electricity Market Law stipulates that only the state-owned Turkish Electricity Transmission Company may carry out electric power transmission. Foreign and domestic investors are not allowed to establish new electricity distribution companies. It is, however, possible to acquire shares in existing distribution companies through privatization, provided that the investor does not acquire a dominant market position in the sector.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

It takes 8 procedures and 8 days to establish a foreign-owned limited liability company (LLC) in Turkey (Istanbul). This is much faster than both the IAB average for Europe and Central Asia and the IAB global average. In addition to the procedures required of a domestic company, a foreign company establishing a subsidiary in Turkey must authenticate and translate the parent companyâ&#x20AC;&#x2122;s documents abroad. Foreign companies do not need to get an investment approval; within 1 month of establishment, however, they must notify the General Directorate of Foreign Direct Investment of the investment and provide information on the shareholding structure of the company. Companies in Turkey are free to open and maintain bank accounts in foreign currency. The minimum capital requirement for domestic and foreign LLCs is TRY 5,000 (~$3,250), but investors do not need to pay it in full at registration. The articles of association must set forth that the capital committed by the shareholders is free from any encumbrances and that either (i) Âźof the capital has been already paid, or (ii) will be paid within 3 months of the date of establishment, with the remaining portion paid within 3 years.

Foreign companies seeking to access land in Turkey may lease or buy privately or publicly held land. Approval is required from the relevant governor to purchase land. Leasing or buying public land is common only if the land is part of an industrial zone. Public land is usually sold through a public tender process. Public land may be bought through direct sale, however, if the investment on the land is at least $10,00,000 and the number of personnel employed at least 50. There are no restrictions on the amount of land that may be leased. The maximum duration of a lease contract is a renewable term of 10 years. Lease contracts offer the lessee the right to sublease, subdivide, and/or mortgage the leased land. There are some restrictions on the transfer of the lease or land to another foreign entity. Most land-related information can be obtained from the Directorate of Land Registry and Cadastre. There are efforts underway to make this information available electronically.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Two laws govern arbitration in Turkey. The Law on Civil Procedure (1927) applies to domestic arbitration and the Law on International Arbitration (enacted in 2001 and entered into force in 2009) applies to international arbitration. There are big differences between the 2 types of arbitration, but foreign-owned and locally incorporated companies can arbitrate under the Law on International Arbitration, which is more flexible. In domestic arbitration, the arbitrators are not authorized to rule on their own jurisdiction; the courts must decide on the arbitral tribunalâ&#x20AC;&#x2122;s jurisdiction. Both laws set strict time limits on rendering an arbitral award. If the tribunal fails to render its award within the required time frame, the arbitration is terminated and the disputes referred to the courts. In international arbitration, where the domiciles or habitual residence of both parties are outside Turkey, parties are entitled to waive their right to an annulment completely or partially by either inserting a clause in the arbitration agreement or by later entering into a written agreement to that effect. Disputes involving immovable property and intracompany disputes are under the exclusive jurisdiction of the Turkish courts and cannot be arbitrated. Parties may freely choose their arbitrators. In domestic arbitration, parties must be represented by lawyers who are licensed to practice in Turkey. This does not apply to international arbitrations. In domestic arbitration, disputes are resolved in accordance with Turkish laws or the principle of equity and cannot be submitted to arbitration outside Turkey. There are more than 4 active arbitral institutions in Turkey. The Commercial Court of First Instance has jurisdiction to enforce arbitration awards. On average, it takes around 16 weeks to enforce an arbitration award rendered in Turkey, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 23 weeks to enforce a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

160

Investing Across Borders 2010

Uganda IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas

100.0

95.2

92.0

Agriculture and forestry

100.0

97.6

95.9

Light manufacturing

100.0

98.6

96.6

Telecommunications

100.0

84.1

88.0

Electricity

71.4

90.5

87.6

Banking

49.0

84.7

91.0

Insurance

100.0

87.3

91.2

Transportation

100.0

86.6

78.5

Media

100.0

69.9

68.0

Sector group 1 (constr., tourism, retail)

100.0

97.6

98.1

Sector group 2 (health care, waste mgt.)

100.0

96.0

47.4

51.5

64.5

71.4

76.6

82.1

n/a

77.3

92.2

25.0

33.9

41.3

77.5

58.5

70.6

60 80

72 151

61 140

86.3

82.4

85.2

62.9

73.8

70.6

39.3

55.9

57.9

Of the 33 sectors covered by the Investing Across Sectors indicators, 30 are fully open to foreign equity ownership in Uganda, including manufacturing and primary industries. The country imposes foreign equity ownership restrictions on a small number of service sectors. The electricity transmission and distribution sectors are closed to foreign capital participation and characterized by monopolies. In the banking sector, Ugandan law specifies that a single shareholder, foreign or domestic, cannot hold more than 49% of the shares of a local bank.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

It takes 21 procedures and 39 days to establish a foreign-owned limited liability company (LLC) in Kampala, Uganda. This is faster than both the IAB regional average for Sub-Saharan Africa and the IAB global average. In addition to the procedures required of domestic companies, a foreign-owned LLC must submit a project proposal through a local counsel to obtain an investment approval from the Uganda Investment Authority (UIA). This approval usually takes 7 days. An appeal can be made to the Minister of State for Finance if said approval is not granted. An appeal is rarely necessary, however, as the foreign investor is usually asked to provide additional information or clarifications if need be. In addition, the company, if it wants to engage in international trade, must obtain a trade license from the Ministry of Tourism, Trade, and Industry. The business registration process is not yet available online. Foreign companies are free to open and maintain foreign currency bank accounts. There is a minimum capital requirement of UGX 200,000,000 (~$100,000) to obtain an investment license from the UIA.

Foreign companies seeking to access land in Uganda may lease privately or publicly held land. The Land Act in Uganda prohibits the ownership of land by foreign companies. Private land available for lease may include customary and communally owned land, which cannot be leased without community consultations. The procedures for leasing both private and public land are similar, but one must negotiate with the relevant public authority for the lease of public land. Land may be leased for a maximum duration of 99 years. There is no restriction on the amount of land that may be leased. Lease contracts offer the lessee the right to sublease, subdivide, and/ or mortgage the leased land, subject to the terms of the contract. Not all land rights require registration. A thorough due diligence process is, therefore, required before leasing land. Most land-related information can be found in the land registry.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Arbitration and Conciliation Act (2000) applies to both domestic and international arbitrations and is not based on the UNCITRAL Model Law. Unlike in many countries in Sub-Saharan Africa, arbitration agreements cannot be concluded electronically. Although the law allows parties to use the language of their choice, with the default language being English, in practice, arbitration proceedings always take place in English. Foreign lawyers cannot represent parties in arbitration proceedings, unless they appear jointly with qualified Ugandan lawyers. Arbitration awards are enforced in the Commercial Division of the High Court in Uganda, and appeals can be made to the Court of Appeal. The courts usually enforce domestic and international arbitration awards. On average, it takes around 26 weeks to enforce an arbitration award rendered in Uganda, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 52 weeks to enforce a foreign award. If an appeal is made during this process, enforcement proceedings become extremely lengthy. Mediation is used frequently in Uganda to resolve disputes, and a special section has been added to the Arbitration and Conciliation Act (2000) to provide specifically for conciliation.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

161

Ukraine IAB global average (87 countries)

IAB regional average (20 countries)

Country score

Indicators

Eastern Europe and Central Asia

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas

100.0

96.2

92.0

Agriculture and forestry

100.0

97.5

95.9

Light manufacturing

82.5

98.5

96.6

Telecommunications

100.0

96.2

88.0

Electricity

100.0

96.4

87.6

Banking

100.0

91.0

Insurance

100.0

94.9

91.2

Transportation

79.6

84.0

78.5

Media

15.0

73.1

68.0

Sector group 1 (constr., tourism, retail)

100.0

98.1

Sector group 2 (health care, waste mgt.)

100.0

96.0

80.0

76.8

64.5

88.5

82.9

82.1

100.0

97.6

92.2

36.8

50.3

41.3

55.0

78.9

70.6

Among the 20 countries covered by the Investing Across Sectors indicators in Eastern Europe and Central Asia, Ukraine imposes restrictions on foreign equity ownership that are more severe than in most other countries. While most of the primary and manufacturing sectors are fully open to foreign capital participation, Ukraine imposes ownership restrictions in a number of service sectors. In particular, the Law of Ukraine on Television and Radio Broadcasting prohibits foreign investors from establishing TV broadcasting companies. Furthermore, private ownership (both domestic and foreign) of nationwide newspaper media is restricted by law. The Law on Publishing Businesses limits foreign ownership of publishing houses to a maximum of 30%. This limit will likely be abolished soon in accordance with the countryâ&#x20AC;&#x2122;s commitments with the World Trade Organization (WTO). Foreign capital participation in the domestic and international air transportation sectors is limited to 49%.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

It takes 11 procedures and 28 days to establish a foreign-owned limited liability company (LLC) in Ukraine (Kiev). This is slower than the average of IAB countries in Europe and Central Asia, but still faster than the IAB global average. In addition to the procedures required of a domestic company, a foreign company establishing a subsidiary in Ukraine must legalize and translate the parent companyâ&#x20AC;&#x2122;s documents abroad. Registration of a foreign investment is optional, although, in practice, foreign investors usually prefer to register their investments. The State Registrar should make all registrations with the State Committee of Statistics of Ukraine, the state social funds (the State Pension Fund, the Employment Insurance Fund, the Social Security Fund, and the Fund for Social Insurance), and the tax authorities for the newly registered company. However, in practice, the State Registrar does not register with the State Committee of Statistics, and that registration is usually made by the company itself. Companies in Ukraine are free to open and maintain bank accounts in foreign currency. The minimum capital requirement is pegged to the minimum monthly salary and is currently UAH 63,000 (~$7,950). Half must be paid in at registration, the other half within a year.

Time to lease public land (days)

209

133

140

86.6

82.5

85.2

78.1

69.7

70.6

72.6

64.4

57.9

The land law in Ukraine allows foreign companies to buy nonagricultural land within city limits for construction purposes or commercial activities. Most foreign companies seeking to access land, therefore, prefer to buy private land. It is possible to buy publicly held land, but this is a generally more complicated procedure requiring the consent of the relevant minister or of parliament. Public land can only be sold through public auction. Land can be leased for a maximum duration of 50 years. Lease contracts offer the lessee the right to transfer, subdivide, or sublease the land, subject to the terms of the contract. There are restrictions on these rights for publicly held land. Land-related information can be found in the land registry. The registry was established in the last 10 years. Not all titles and deeds that existed before the registry was created have been recorded. The information it contains may, therefore, not be reliable. A cadastre has been legislated, but has not yet been established.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The International Commercial Arbitration Law (ICAL, 1994) applies to international arbitration and the Law on Courts of Arbitration (2004) applies to domestic arbitration. A distinctive feature of ICAL is that it incorporates the regulations of 2 arbitral institutions. The Statutes of the International Commercial Arbitration Court and the Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry are annexed to ICAL. ICAL distributes the functions of arbitration assistance and supervision between the district courts and the President of the Chamber of Commerce and Industry of Ukraine for both ad hoc and institutional arbitrations. The following commercial disputes cannot be resolved by domestic arbitration: disputes based on commercial contracts, those connected with fulfillment of state demands, disputes involving state secrets, bankruptcy disputes, disputes involving a party exercising state power, disputes over immovable property, intracompany disputes, disputes involving a nonresident party, and disputes in which a judgment of the arbitration court would require the execution of state power by an authorized body. ICAL limits the jurisdiction of international arbitration tribunals to civil law disputes arising from international economic operations (provided that the commercial enterprise of at least 1 party exists outside of Ukraine), disputes between international organizations and enterprises with foreign investments in Ukraine, and intracompany disputes of these enterprises. Arbitrators in domestic arbitrations must have a higher legal education, which is not required in international arbitrations. On average, it takes around 7 weeks to enforce an arbitration award rendered in Ukraine, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 13 weeks to enforce a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

162

Investing Across Borders 2010

United Kingdom IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas

100.0

92.0

Agriculture and forestry

100.0

95.9

Light manufacturing

65.0

93.8

96.6

Telecommunications

100.0

89.9

88.0

Electricity

100.0

88.0

87.6

Banking

100.0

97.1

91.0

Insurance

100.0

91.2

79.6

69.2

78.5

Media

100.0

73.3

68.0

Sector group 1 (constr., tourism, retail)

100.0

98.1

Sector group 2 (health care, waste mgt.)

100.0

91.7

96.0

85.0

77.8

64.5

100.0

92.2

82.1

100.0

92.2

50.0

52.5

41.3

80.0

84.2

70.6

Time to lease private land (days)

Time to lease public land (days)

140

99.9

94.2

85.2

87.5

83.3

70.6

94.5

77.6

57.9

Transportation

The United Kingdom offers a welcoming environment to foreign investors, with foreign equity ownership restrictions in only a limited number of sectors covered by the Investing Across Sectors indicators. As in all other European Union member countries, foreign equity ownership in the air transportation sector is limited to 49% for investors from outside of the European Economic Area (EEA). Furthermore, the Industry Act (1975) enables the U.K. government to prohibit transfer to foreign owners of 30% or more of important U.K. manufacturing businesses, if such a transfer would be contrary to the interests of the country. While these provisions have never been used in practice, they are still accounted for in the Investing Across Sectors indicators, as these strictly measure ownership restrictions defined in the laws.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

The process of establishing a foreign-owned subsidiary in the United Kingdom (London) is faster than the IAB regional average and similar to the one applicable to local companies. The 1 additional step required exclusively of foreign investors is the double taxation treaty clearance in respect of any payments potentially subject to withholding, including payments such as dividends, royalties, and interest. In London, Companies House offers a same-day incorporation service for an additional fee, as opposed to the usual registration service, which takes 8 to 10 days. In addition, Companies House’s forms G10 and G12 can be downloaded and submitted online. Alternatively, a ready-formed “shelf” company can be acquired from local law firms and formation agents. The majority of goods can be imported into the United Kingdom without the need to apply for an import license, although an export license may be required, depending on the nature of the goods to be exported, their ultimate end use, and the destination concerned. In the United Kingdom, there are no exchange control or currency regulations affecting inward or outward investment, the holding of foreign currency bank accounts, or the settlement of currency trading transactions. The only exception is in relation to money laundering, which requires banks to undertake certain verifications of new clients.

Foreign companies seeking to access land in the United Kingdom have the option to lease or buy land from both private and public owners. Procedures involved in leasing privately and publicly held land are the same except that the public authority seeking to lease land needs to comply with its own internal requirements for entering into land transactions. Lease contracts can be of unlimited duration and offer the lessee the right to subdivide and sublease the leased land as well as to mortgage it or use it as collateral. There are no restrictions on the amount land that may be leased. Not all land in the United Kingdom is registered. Land rights for registered land are recorded in the title deeds registry. However, some rights affecting land may also exist without it being registered or recorded in the registry. Currently there is no centralized land information system (LIS) or geographic information system (GIS) in place that centralizes relevant information at a single point of access.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The United Kingdom has a long history of alternative dispute resolution (ADR), although it lacks a statute governing commercial mediations. The primary arbitration legislation is the Arbitration Act (1996), which governs all arbitration agreements made in writing. All types of commercial disputes are arbitrable. Oral arbitration agreements or those inferred by conduct are enforceable. Domestic and international arbitrations are equally liberal. There are no explicit provisions for confidentiality of the proceedings in the Arbitration Act. The United Kingdom has a variety of arbitration institutions administering domestic, international, and online disputes. The domestic courts are generally supportive of arbitration. An arbitration award can only be challenged on 3 grounds: lack of substantive jurisdiction, serious irregularity, and appeal on a point of law. Enforcement is also fairly straightforward: the court will normally enter a judgment or issue an order on the terms of the award. On average, it takes around 8 weeks to enforce an arbitration award rendered in the United Kingdom, from filing an application to a writ of execution attaching assets (assuming there is no appeal), and 6 weeks to enforce a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

163

United States IAB global average (87 countries)

IAB regional average (12 countries)

Country score

Indicators

High-income OECD

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas

100.0

92.0

Agriculture and forestry

100.0

95.9

Light manufacturing

100.0

93.8

96.6

Telecommunications

100.0

89.9

88.0

Electricity

100.0

88.0

87.6

Banking

100.0

97.1

91.0

Insurance

100.0

91.2

Transportation

85.0

69.2

78.5

Media

62.5

73.3

68.0

Sector group 1 (constr., tourism, retail)

100.0

98.1

Sector group 2 (health care, waste mgt.)

100.0

91.7

96.0

80.0

77.8

64.5

100.0

92.2

82.1

100.0

92.2

50.0

52.5

41.3

95.0

84.2

70.6

Time to lease private land (days)

Time to lease public land (days)

140

85.0

94.2

85.2

81.8

83.3

70.6

75.3

77.6

57.9

Of the 33 sectors covered by the Investing Across Sectors indicators, 31 are fully open to foreign equity ownership in the United States. The only exceptions are the domestic air transportation and TV broadcasting industries. According to the Federal Aviation Act of 1958, foreign investors can only hold a maximum of 25% of the shares of a company providing domestic air transportation services in the United States. Furthermore, the president and at least two-thirds of the board of directors and other managing officers of such a company must be U.S. citizens. The aforementioned restrictions do not apply to the provision of international air transportation services, which are fully open to foreign capital participation. The Communications Act of 1934 specifies that foreign ownership in the TV broadcasting sector is limited to a maximum of 25%. However, the FCC has the discretion to allow higher levels of indirect foreign ownership (up to 100%) if consistent with the public interest. Cable television providers are exempted from this restriction.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

The process of establishing a foreign-owned subsidiary in the United States (New York) takes a foreign investor on average 11 days and requires 8 procedures, shorter than the IAB regional and global average. While it is possible to use New York state law governing limited liability companies (LLCs), the majority of foreign investors choose to set up their companies in Delaware due to this state’s simple corporate and case law. A foreign company wishing to set up a subsidiary in New York must obtain authorization to do business in that state prior to operations. Although the regular establishment process is already fairly quick, the United States offers expedited processing of formation documents. For an additional, nonrefundable fee, the Division of Corporations will ensure that the documentation is processed within an even shorter time frame. Foreign investments must be reported to the U.S. Department of Commerce, Bureau of Economic Analysis, by filing form BE 605. There is no paid-in capital requirement for setting up a foreign-owned subsidiary under New York LLC law. In addition, there are no applicable statutory provisions that would restrict the composition of the board of directors or appointment of managers based on nationality, ethnicity, race, or gender.

Foreign companies seeking to access land in the United States have the option to lease or buy land from both private and public owners. It is not common for either domestic or foreign entities to buy government property, as the approval process is time-consuming. If several lessees are interested in leasing a particular parcel of publicly held land, a “request for proposal” process is conducted requiring all interested parties to compete for the land. In certain circumstances, it is possible to negotiate the lease or sale of publicly owned land without such a process. A foreign-owned company would typically not be legally required to perform environmental or social impact assessments in order to lease land already zoned for industrial use. However, certain public agencies may impose this obligation in accordance with the Department of Environmental Conservation before concluding a lease. Lease contracts offer the lessee the right to sublease, mortgage, or subdivide the land. Subdivision is subject to applicable zoning laws.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Arbitration of disputes and enforcement of arbitral awards are governed by the 1925 Federal Arbitration Act (FAA) and arbitration statutes enacted by the states. Many states have also adopted the Uniform Arbitration Act (1956). Federal arbitration law trumps state arbitration law where interstate transactions are involved. The FAA does not address several issues expressly considered in the UNICTRAL Model Law, such as separability, challenging arbitrators, provisional relief, and the like. The FAA states that an arbitral award may be vacated where there is “evident partiality” on the part of an arbitrator. Nonetheless, party-appointed arbitrators have historically been presumed (absent contrary agreement) to have a measure of partiality toward the party that appointed them, especially in domestic arbitrations. In addition, there may be more disclosure requirements for domestic, than for international arbitrations. The American Arbitration Association (AAA) and the International Center for Dispute Resolution administer online arbitrations, including disputes between suppliers and manufacturers. Domestic courts are generally supportive of arbitration, and have adopted pro-arbitration policies. On average, it takes around 19 weeks to enforce an arbitration award rendered in the United States, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 18 weeks to enforce a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

164

Investing Across Borders 2010

Venezuela, RB IAB global average (87 countries)

IAB regional average (14 countries)

Country score

Indicators

Latin America and the Caribbean

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas

74.5

91.0

92.0

Agriculture and forestry

100.0

96.4

95.9

Light manufacturing

100.0

96.6

Telecommunications

100.0

94.5

88.0

Electricity

85.7

82.5

87.6

Banking

100.0

96.4

91.0

Insurance

100.0

96.4

91.2

Transportation

20.0

80.8

78.5

Media

20.0

73.1

68.0

Sector group 1 (constr., tourism, retail)

100.0

98.1

Sector group 2 (health care, waste mgt.)

100.0

96.4

96.0

179

42.5

62.8

64.5

72.5

78.2

82.1

100.0

98.2

92.2

44.4

40.4

41.3

75.0

73.0

70.6

87 138

62 156

61 140

89.1

87.5

85.2

57.1

66.8

70.6

52.2

51.7

57.9

Among the 14 countries in Latin America and the Caribbean covered by the Investing Across Sectors indicators, República Bolivariana de Venezuela’s restrictions on foreign equity ownership are relatively stringent. The National Constitution authorizes the government to reserve for itself those industries and services that are in the public interest and of a strategic nature. The most prominent example is the oil and gas sector, in which foreign capital participation is restricted by the Hydrocarbons Organic Law. Several service industry sectors are closed to foreign ownership, including railway freight transportation, domestic air transportation, and airport and port operation. Foreign capital participation in the media sector (television broadcasting and newspaper publishing) is limited to a maximum of 20%. In addition to these overt legal restrictions on foreign investment, a comparatively large number of sectors is dominated by government monopolies, including, but not limited to, those mentioned above. Notable additional sectors dominated by publicly owned enterprises include the electricity and fixed-line telecommunications sectors. Those monopolies, together with a high perceived difficulty of obtaining required operating licenses, make it more difficult for foreign companies to invest. In addition the current government has recently nationalized several foreign companies including hotels, banks and retail chains further suggesting that República Bolivariana de Venezuela is less open to FDI than its laws suggest.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

It takes 19 procedures and 179 days to establish a foreign-owned limited liability company (LLC) that wants to engage in international trade in República Bolivariana de Venezuela (Caracas). This process is slower than the averages in both Latin America and the Caribbean and the IAB countries globally. Companies in República Bolivariana de Venezuela must be incorporated with a minimum of 2 shareholders (although, once incorporated, the law does not prohibit the shares being owned by 1 shareholder). República Bolivariana de Venezuela has limitations on hiring foreign personnel: only 10% of a company’s staff can be foreign and payments to foreign workers cannot exceed 20% of total payroll, unless the Ministry of Labor authorizes a temporary exception. In addition to the procedures required of a domestic firm, a foreign company establishing itself in República Bolivariana de Venezuela must authenticate the parent company’s documents in its country of origin. A foreign company does not need an investment approval. However, the investment must be registered with SIEX (Superintendencia de Inversiones Extranjeras) in order to be authorized to purchase foreign currency at the official exchange rate and repatriate capital and dividends. A company can purchase foreign currency from the central bank at the official exchange rate, if (i) it has registered with RUSAD (Registro de Usuarios del Sistema de Administración de Divisas), and (ii) it has received foreign-exchange approvals from the currency administration CADIVI (Comisión de Administración de Divisas) for each transaction. The issuance of the approvals is subject to the discretion of CADIVI and the availability of foreign currency. Companies in República Bolivariana de Venezuela cannot hold a bank account in foreign currency. There is no minimum capital requirement, although 20% of the subscribed capital must be paid in at registration.

In República Bolivariana de Venezuela, foreign companies have the option to lease or buy private land. It is legally possible to lease or buy publicly held land, but this is not common, as several restrictions apply. There are no clearly defined procedures for leasing public land. Procedures thus vary from municipality to municipality. The proceedings may be lengthy and cumbersome, especially at the negotiation stage. Land may be leased for a maximum duration of 15 years. Leases for durations of less than 6 years need not be registered or notarized. Lease contracts offer the lessee the right to transfer, subdivide, or sublease the land, subject to the terms of the contract and local planning laws. There are restrictions on the amount of publicly held land that may be leased. Land-related information can be found in the land registry and cadastre. The registry and cadastre are not yet linked or coordinated to share data, but there are currently plans in place to do so.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Venezuelan Commercial Arbitration Act of 1998 is based on the UNCITRAL Model Law, but applies to both domestic and international arbitrations in República Bolivariana de Venezuela and distinguishes between arbitration at law and arbitration at equity. There is no specific mediation law, but mediation is largely used for the resolution of labor disputes. All commercial matters are arbitrable, except for disputes involving immovable property in República Bolivariana de Venezuela. In addition, foreign companies cannot enter into arbitration agreements with the state regarding disputes over natural resources. For other disputes involving public companies, previous consent is required from the Attorney General. In arbitrations at law, parties are required to choose lawyers who are licensed to practice locally as arbitrators and counsel. Tribunals must consist of an odd number of arbitrators. When a public entity or company is party to the arbitration, the tribunal must be composed of at least 3 arbitrators. Two recent decisions by the Constitutional Chamber of the Venezuelan Supreme Court have reinforced and expanded the pro-arbitration policy of courts in commercial arbitrations, expressly provided in Article 258 of the Venezuelan Constitution. On average, it takes around 43 weeks to enforce an arbitration award rendered in República Bolivariana de Venezuela, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It also takes roughly 43 weeks to enforce a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

165

Vietnam IAB global average (87 countries)

IAB regional average (10 countries)

Country score

Indicators

East Asia and the Pacific

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas Agriculture and forestry

50.0

75.7

92.0

100.0

82.9

95.9

Light manufacturing

75.0

86.8

96.6

Telecommunications

50.0

64.9

88.0

Electricity

71.4

75.8

87.6

Banking

65.0

76.1

91.0

Insurance

100.0

80.9

91.2

69.4

63.7

78.5

0.0

36.1

68.0

100.0

91.6

98.1

75.5

84.1

96.0

57.9

57.4

64.5

77.3

84.9

82.1

n/a

83.3

92.2

57.9

35.1

41.3

92.5

67.5

70.6

120 133

66 151

61 140

84.9

83.8

85.2

61.8

66.1

70.6

57.2

46.6

57.9

Transportation Media Sector group 1 (constr., tourism, retail) Sector group 2 (health care, waste mgt.)

Of the 33 sectors covered by the Investing Across Sectors indicators, 18 are fully open to foreign equity ownership in Vietnam, including manufacturing industries. Overt statutory ownership restrictions exist primarily in strategic services sectors, such as telecommunications (fixed-line and wireless/mobile), electricity transmission and distribution, and select transportation sectors. In accordance with Vietnam’s WTO commitment, the government decree 121/2008/ND-CP imposes a limit of 49% on foreign capital participation in companies providing telecommunications infrastructure. The respective limit for foreign ownership in the telecommunications service providers is 51%. The electricity transmission and distribution sectors operate under direct government control and are closed to foreign companies. Foreign capital participation in the domestic and international air transportation industries is limited to a maximum share of 49%. Under the Law on Press, private investment (domestic or foreign) in the media sectors, including television broadcasting and newspaper publishing, is prohibited.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

It takes 12 procedures and 94 days to establish a foreign-owned limited liability company (LLC) in Ho Chi Minh City, Vietnam. This is slower than both the average for IAB countries in East Asia and the Pacific and the IAB global average. In addition to the procedures required of domestic companies, a foreign company must translate the documents of the parent company into Vietnamese, have a licensing authority or a notary public certify them as a “true copy” in its country of origin, and legalize said documents with the embassy or consulate of the country of origin in Vietnam and with the Vietnamese Department of Foreign Affairs. In addition, the foreign company must apply for foreign investment approval from the Department of Planning and Investment (DPI) in the form of an investment certificate. The certificate takes on average 57 days to obtain and is in lieu of the business registration certificate required of domestic LLCs. The application is available online and should include a specific business project, including a feasibility study and an environmental assessment. Foreign companies are free to open and maintain bank accounts in foreign currency. There is no minimum capital requirement for foreign or domestic companies in Vietnam.

In Vietnam, the land is owned by the state and cannot be bought. The most common way to acquire land is to lease publicly held land. A foreign company may only lease private land from the developer of an industrial zone. The process of leasing land from the state involves obtaining clearance from the state and negotiating with the holder of the land to relinquish it to the state. The state can then lease the land to the foreign company. This process can take a few months or several years to complete. Land may be leased for a maximum duration of between 50 and 70 years. Lease contracts offer the lessee the right to subdivide, sublease, or mortgage the leased land, subject to the terms of the contract and approval from the relevant government authority. Land-related information can be found in the registry and cadastre.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

Arbitration in Vietnam is governed by the Ordinance on Commercial Arbitration (2002). Decree No. 25 (2004) and Resolution No. 05 (2003) provide guidelines on implementing certain provisions of the ordinance. These guidelines have contradictory provisions, which make the arbitration regime less efficient. All commercial matters can be resolved by arbitration, providing that the respective parties are registered business entities. There are restrictions on parties’ autonomy to select an arbitrator. The law stipulates, for example, that the arbitrator must be a Vietnamese citizen and have at least 5 years of experience in his or her field. There are several arbitral institutions in Vietnam. The number of arbitrations undertaken in Vietnam, however, is still relatively small. Vietnam’s inefficient arbitration regime makes arbitration a less popular option. For example, awards rendered by Vietnamese arbitrators have only been enforceable since 2003. There are also numerous grounds for setting aside an arbitral award. Courts do not enforce arbitration awards, but the provincial enforcement authority, which is administered by the Ministry of Justice, does. Foreign awards are enforced in court, and this is an easier process because Vietnam is a signatory to the 1958 New York Convention. On average, it takes around 13 weeks to enforce an arbitration award rendered in Vietnam, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 17 weeks to enforce a foreign award.

For more information on this country, please go to http://www.investingacrossborders.org

166

Investing Across Borders 2010

Yemen, Rep. IAB global average (87 countries)

IAB regional average (5 countries)

Country score

Indicators

Middle East and North Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas

100.0

78.8

92.0

Agriculture and forestry

100.0

95.9

Light manufacturing

100.0

95.0

96.6

Telecommunications

50.0

84.0

88.0

Electricity

71.1

68.5

87.6

Banking

100.0

82.0

91.0

Insurance

100.0

92.0

91.2

60.0

63.2

78.5

Media

100.0

70.0

68.0

Sector group 1 (constr., tourism, retail)

100.0

94.9

98.1

Sector group 2 (health care, waste mgt.)

100.0

90.0

96.0

68.4

58.6

64.5

69.2

78.3

82.1

62.5

68.8

92.2

57.9

46.4

41.3

85.0

66.0

70.6

53 52

59 123

61 140

74.9

82.0

85.2

81.4

65.5

70.6

44.0

48.7

57.9

Transportation

Of the 33 sectors covered by the Investing Across Sectors indicators, 26 are fully open to foreign equity ownership in the Republic of Yemen, including manufacturing and primary industries. The country imposes ownership restrictions in a number of service sectors. Foreign ownership in electricity transmission and wind power, for example, is limited to a maximum of 49%. Furthermore, the fixed-line telecommunications (infrastructure and services), electricity distribution, and airport and port operation sectors are closed to foreign capital participation. In addition, a number of sectors are dominated by government monopolies, including, but not limited to, those mentioned above. Those monopolies represent an additional obstacle for foreign companies wishing to enter the market.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

It takes 9 procedures and 29 days to establish a foreign-owned limited liability company (LLC) in Sanaâ&#x20AC;&#x2122;a, the Republic of Yemen. This is slower than the IAB regional average for the Middle East and North Africa but faster than the IAB global average. An LLC in the Republic of Yemen needs at least 2 shareholders. In addition to the procedures required of a domestic enterprise, a foreign company establishing a subsidiary must authenticate the documents of the parent company abroad. It must also acquire an investment approval from the General Investment Authority (GIA) before starting its establishment process. This approval usually takes 15 days to obtain. If the investment approval is not granted, foreign investors may appeal the decision by applying in writing either to the GIA or its president within 30 days of notification of the decision. The foreign company must also deposit the share of required capital in a recognized local bank, which takes only 1 day. Samples of registration documents are available online. Any company in the Republic of Yemen may freely open and maintain bank accounts in foreign currency. At incorporation, shareholdersâ&#x20AC;&#x2122; subscription to capital must be no less than 20%, according to the Investment Act of the Republic of Yemen (2002).

Foreign companies seeking to acquire land in the Republic of Yemen have the option to lease or buy privately or publicly held land. The most common option for foreign companies seeking to acquire land is to lease or buy private land. Leasing or buying publicly held land requires approval from the General Investment Authority. There is no maximum duration for the lease of either private or publicly held land. Lease contracts offer the lessee the right to transfer, subdivide, sublease, or mortgage the leased land, subject to the terms of the contract and approval from the relevant authorities. There are no restrictions on the amount of land that may be leased, but land is scarce and therefore it is difficult to acquire large parcels. Most land-related information can be found in the survey and land registration authority. There is no land information system (LIS) or geographic information system (GIS) in place that centralizes relevant information.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Yemeni Law of Arbitration No. 22 of 1992 is based largely on the UNCITRAL Model Law, but offers more comprehensive provisions dealing with fixed time limits to appoint arbitrators, conflicts of law and the choice of substantive laws, and the issuance of arbitration awards. All commercial disputes are arbitrable, including those involving public entities. Parties in private arbitrations may appoint foreign counsel to represent them. Parties may select arbitrators of any nationality, gender, or professional qualifications. Active judges can also act as arbitrators, except in cases pending before their court and cases that have been referred to them by another judge. Arbitrators are required by law to be independent and impartial and to preserve the confidentiality of the proceedings. There is 1 main arbitral institution, the Yemen Center for Conciliation and Arbitration (YCCA), which is associated with the Arabic Conciliation and Arbitration Institution in Cairo and the Arab Countries Council. On request of one of the parties, the arbitral tribunal may order the other party to make any provisional or conservatory measure it deems necessary. Articles 43, 24, 22, and 18 of the Arbitration Law require courts to assist arbitral tribunals with the taking of evidence and orders of provisional measures. On average, it takes around 43 weeks to enforce an arbitration award rendered in the Republic of Yemen, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes roughly 41 weeks to enforce a foreign award. The Republic of Yemen has not ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

For more information on this country, please go to http://www.investingacrossborders.org

Profiles of Economies

167

Zambia IAB global average (87 countries)

IAB regional average (21 countries)

Country score

Indicators

Sub-Saharan Africa

Highlights

Investing Across Sectors Foreign equity ownership indexes (100 = full foreign ownership allowed) Mining, oil and gas

100.0

95.2

92.0

Agriculture and forestry

100.0

97.6

95.9

Light manufacturing

100.0

98.6

96.6

Telecommunications

100.0

84.1

88.0

Electricity

100.0

90.5

87.6

Banking

100.0

84.7

91.0

Insurance

100.0

87.3

91.2

Transportation

100.0

86.6

78.5

Media

100.0

69.9

68.0

Sector group 1 (constr., tourism, retail)

100.0

97.6

98.1

Sector group 2 (health care, waste mgt.)

100.0

96.0

47.4

51.5

64.5

71.4

76.6

82.1

n/a

77.3

92.2

37.5

33.9

41.3

75.0

58.5

70.6

104 122

72 151

61 140

97.4

82.4

85.2

65.7

73.8

70.6

77.3

55.9

57.9

Zambia is one of the most open countries to foreign equity ownership, as measured by the Investing Across Sectors indicators. All of the 33 sectors covered by the indicators are fully open to foreign equity ownership. Monopolistic market structures characterize the electricity transmission and distribution sectors, though, representing a potential obstacle to foreign investors.

Starting a Foreign Business Time (days) Procedures (number) Ease of establishment index (0 = min, 100 = max)

It takes 9 procedures and 58 days to establish a foreign-owned limited liability company (LLC) in Lusaka, Zambia. The process is less complex than the IAB regional and global averages, but takes longer to complete. In addition to the procedures required of a domestic company, a foreign company establishing a subsidiary in Zambia must authenticate its documents abroad. A foreign company must also obtain a trade license if it plans to engage in international trade. This license takes 38 days to obtain. A foreign company is not required to obtain an investment license from the Zambia Development Agency (ZDA), unless it wants to benefit from associated tax exemptions and incentives and to acquire land. Documentation related to the registration process is available online, but must be submitted in person to the Patents and Companies Registration Office (PACRO). Foreign companies are free to open and maintain foreign currency bank accounts. The minimum paid-in capital requirement is different for foreign and domestic companies: a private foreign-owned company is subject to ZMK 5,000,000 (~$1,000), while a domestic company is subject to ZMK 50,000 (~$10). Note that if the foreign-owned company is a public one, the paid-in capital requirement is ZMK 50,000,000 (~$10,000).

In Zambia, all land is vested in the state, with the president as trustee. Land is usually acquired from the state on a leasehold basis for up to 99 years, on condition that it is developed. Foreign companies seeking to acquire land may lease publicly held land or land that has already been acquired by private parties from the state. In order for a foreign company that has no local shareholders to acquire land, it must be registered as an investor with the Zambia Development Agency. Leasing publicly held land requires approval from the relevant public authority. It is unclear how long the process of leasing public land takes. Generally, it may take a few weeks to several months. Lease contracts offer the lessee the right to subdivide, sublease, or mortgage the leased land, subject to the terms of the contract. Subdivision of the lease requires approval from the local planning authorities. Land-related information can be found in the land deeds registry.

Arbitrating Commercial Disputes Strength of laws index (0 = min, 100 = max) Ease of process index (0 = min, 100 = max) Extent of judicial assistance index (0 = min, 100 = max)

The Zambia Arbitration Act No. 19 of 2000 applies to both domestic and international arbitrations, and is based on the UNCITRAL Model Law. Arbitration agreements must be in writing. Parties may appoint an arbitrator of any nationality, gender, or professional qualifications. The act does not specify that arbitrators must be independent and impartial, nor are there express provisions for arbitrators to keep arbitration proceedings confidential. Foreign lawyers cannot be used to represent parties in domestic or international arbitrations taking place in Zambia. There are no facilities that provide online arbitration in Zambia, although there is an arbitral institution, the Zambia Institute of Arbitrators. Arbitration awards are enforced in the High Court of Zambia, and judgments of that court enforcing or denying enforcement of an award can be appealed to the Supreme Court. However, arbitration awards cannot be reviewed on the merits of the case. On average, it takes around 14 weeks to enforce an arbitration award rendered in Zambia, from filing an application to a writ of execution attaching assets (assuming there is no appeal). It takes slightly longer to enforce a foreign award, around 18 weeks. Contracts involving state entities commonly rely upon arbitration as a dispute resolution tool.

For more information on this country, please go to http://www.investingacrossborders.org

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Acknowledgments Investing Across Borders 2010 was prepared by a team comprising Tania Ghossein, Kusi Hornberger, Harald Jedlicka, Márton Kerkápoly, Antonia Menezes, Nina Mocheva, Ife Osaga, Tanya Primiani, and Swarnim Wagle. The team was led by Peter Kusek under the general direction of Michael Klein (through May 2009), Janamitra Devan (from October 2009), Pierre Guislain, Cecilia Sager, and Robert Whyte. Joseph Battat and Penelope Brook advised the project. The project was made possible by the financial support of the Federal Ministry of Finance of Austria through its contribution to the FIAS trust fund supporting the activities of the World Bank Group’s Investment Climate Advisory Services. The International Bar Association was IAB’s main partner for collecting data in many high-income OECD economies. The team is grateful to Mark Ellis and his associates Erin Callahan and Annie Dunster for this collaboration. The American Bar Association (ABA) and the World Services Group (WSG) also contributed to the project. The team thanks Melida Hodgson (ABA), Daniel Marín Moreno (ABA), and Steven McKinney (WSG) for managing these partnerships. The team is also grateful to the following individuals for feedback and guidance at various stages of IAB’s development: Aykhan Asadov (Baker & McKenzie), Frédéric Bachand (McGill University), Markham Ball (University of Pennsylvania Law School), Yas Banifatemi (Shearman & Sterling LLP), Kim Bettcher (Center for International Private Enterprise), Sveinbjorn Blondal (Organisation for Economic Co-operation and Development), Tony Burns (Land Equity International), Stephen Butler (University of Chicago), Jonathan Conning (City University of New York), Paul de Wit (Food and Agriculture Organization), Timothy Dickinson (Paul, Hastings, Janofsky & Walker LLP), Sean Dougherty (Organisation for Economic Co-operation and Development), Stig Enemark (Aalborg University), Ivan Ford (University of New Brunswick), Bill Seabrooke Frics (Cambridge University), Jason Fry (International Chamber of Commerce’s International Court of Arbitration), Emmanuel Gaillard (Shearman & Sterling LLP), Rainer Geiger (Organisation for Economic Co-operation and Development), Stephen Golub (Swarthmore College), Yu-Hung Hong (Massachusetts Institute of Technology), Lakshmi Iyer (Harvard University Business School), Emmanuel Jolivet (International Chamber of Commerce’s International Court of Arbitration), Mark Kantor (independent arbitrator), Susan Karamanian (George Washington University Law School), Stuart Kerr (Millennium Challenge Corporation), Annamaria Kokeny (International Monetary Fund), Gerald Korngold (New York University Law School), Ian Laird (Crowell & Moring LLP), Lahra Liberti (Organisation for Economic Co-operation and Development), Patrick McAuslan (Birkbeck University of London), Anne Miroux (United Nations Conference on Trade and Development), Hafiz Mirza (United Nations Conference on Trade and Development), Corinne Montineri (United Nations Commission on

International Trade Law), Theodore Moran (Georgetown University), Hanri Mostert (Faculty of Law, University of Cape Town), Mark Napier (Urban LandMark Trust), Anthony O’Sullivan (Organisation for Economic Co-operation and Development), Steve Pollard (Asian Development Bank), Joseph Profaizer (Paul, Hastings, Janofsky & Walker LLP), Borzu Sabahi (Georgetown University), Jolyne Sanjak (Millennium Challenge Corporation), Renaud Sorieul (United Nations Commission on International Trade Law), Stephen Thompson (Organisation for Economic Co-operation and Development), Don Wallace (International Law Institute), Louis Wells (Harvard Business School), Jason Yackee (University of Wisconsin Law School) and others. The team would also like to thank our many colleagues at the World Bank Group—including the World Bank, International Finance Corporation, Multilateral Investment Guarantee Agency, and International Centre for Settlement of Investment Disputes—who have contributed to IAB, including Svetlana Bagaudinova, Karim Belayachi, Keith Bell, Ingo Borchert, Lada Busevac, Frederic Bustelo, Sarah Cuttaree, Klaus Deininger, Stephan Dreyhaupt, Jocelyn Dytang, Penelope Fidas, Gonzalo Flores, Xavier Forneris, Carolin Geginat, Batshur (Shuree) Gootiiz, Lars Grava, Neil Gregory, Zenaida Hernandez Uriz, Sabine Hertveldt, Melissa Johns, Palarp Jumpasut, Dahlia Khalifa, Oliver Lorenz, Thomas Mahaffey, Jana Malinska, Aaditya Mattoo, Ivan Nimac, Dana Omran, Ucheora Onwuamaegbu, Vincent Palmade, Srilal Perera, Paul Scott Prettitore, Rita Ramalho, Yara Salem, Francoise Schorosch, Xiaofang Shen, Sylvia Solf, Patricia Sulser. We are also grateful for the guidance of the World Bank Group’s Executive Directors and their staff. The team is indebted to Georgetown University Law Center, in particular Molly Jackson and Dorothy Mayer for organizing an externship program for LL.M. students to conduct legal research and analysis for IAB. Students in the program included Assel Aldabergen, Dominic Boucsein, Idil Cagal, Matthieu Gregoire, Akvile Gropper, Eun Sang Hwang, Steven Kolias, Anna Kouyate, Aleksandra Krzeminska, Po Ching (Cristine) Lam, Erland Leonhardsen, Benjamin Mackinnon, Mahwush Malik, Laura Medina, Chigozie Odediran, Galav Sharma, Mohamed Sidiki Sylla, Giorgos Soumalevris, Yihong Wang, and Sylvia Wibabara. The online IAB database is managed by Preeti Endlaw, Graeme Littler, and Kunal Patel. The report’s media and dissemination plan was managed by Nadine Ghannam. All knowledge management and outreach activities are under the general direction of Suzanne Smith. Grace Morsberger edited the main text of the report. Paul Holtz edited the Introduction and Overview. Doriana Basamakova and Yulia Felender edited IAB’s Web site. Corporate Visions designed the report.

Acknowledgments

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Project contributors

Global and regional contributors and coordinating partners:

This report was made possible by the generous participation of more than 2,350 lawyers, accountants, law professors, and public officials in 87 economies. Global and regional contributors are firms that have completed multiple surveys in their offices around the world.

Allen & Overy Allens Arthur Robinson American Bar Association (ABA) Mélida Hodgson, Daniel Marín Moreno

The names of those contributors wishing to be acknowledged individually are listed below. The list also includes individuals who contributed to the project during its pilots in 2008.

KPMG PricewaterhouseCoopers (PwC)

Baker & McKenzie

Schönherr

Clifford Chance

Talal Abu-Ghazaleh Legal (TAG-Legal) Christine Bou Khater, Yazan Quandour

Deloitte

White & Case

DLA Piper

Contact details and up-to-date list of contributors are posted on the IAB Web site at http://www.investingacrossborders.org.

International Bar Association (IBA) Mark Ellis, Annie Dunster, Erin Callahan

Wolf Theiss

Ernst & Young

World Services Group Steven McKinney

Herbert Smith

Country-specific contributors: Afghanistan Naseem Akbar Afghanistan Investment Support Agency (AISA)

Jordan Daci Daci Law Firm

Enkelejd Seitllari Kalo & Associates

Eniana Dupi AECO Consulting

Isuf Shehu 2Win Partners

Hushang Hafizi Sole practitioner

Sokol Elmazaj Boga & Associates (Law

M. Wisal Khan Mandviwalla & Zafar Advocates

Gjergji Gjika Drakopoulos Law Firm

and legal consultants

Stephan Lombardo Emerging Markets Group (USAID/LTERA implementing contractor)

Shpati Hoxha Hoxha, Memi & Hoxha (HM&H) Oltjan Hoxholli Kalo & Associates Naim Isufi Isufi Law

Thomas Rosenstock Lawyer (USA/Afghanistan)

Evis Jani Drakopoulos Law Firm

Said Mubin Shah Afghanistan Investment Support Agency (AISA)

Taulant Jorgji IKRP Rokas & Partners Albania

Albania Erjola Aliaj IKRP Rokas & Partners Albania Alban Bala COMPORT

shpk

Vera Batalli Loloci & Associates Alban Bello IKRP Rokas & Partners Albania Jonida Beqiri Drakopoulos Law Firm Jona Bica Kalo & Associates Jonida Cepani Schönherr Rechtsanwälte GmbH

Dorian Kashuri Kalo & Associates Fatos Lazimi Kalo & Associates Georgios Lemonis IKRP Rokas & Partners Albania Ekflodia Leskaj Drakopoulos Law Firm Brunilda Lilo Loloci & Associates

Associates

shpk firm)

Mariam Atash Nawabi AMDi, Inc.

Michael Sinclair USAID/LTERA

and

Marcela Anchava Cárdenas, Di Ció, Romero, Tarsitano & Lucero

Elda Shuraja Hoxha, Memi & Hoxha (HM&H) Sabina Shytaj Business Concern, Fiscal Financial Consultant

and

Olti Skrame Kalo & Associates Oltion Spiro Loloci & Associates Denata Stoja Drakopoulos Law Firm Wolf Theiss

sh.p.k.

Angola Teodoro Almeida RGT Advogados Manuela Cunha MMMC, advogados N’Zinga Jasse AG&LP - Adelaide Godinho e Luís Pizarro, Escritório de Advogados Rui Passos MMMC, advogados

Ignacio Aramburu Rattagan, Macchiavelo, Arocena & Peña Robirosa Luis Arana Tagle Negri & Teijeiro Abogados S.C. Jorge Bacher PricewaterhouseCoopers Ricardo Barreiro Deymonnaz Rattagan, Macchiavelo, Arocena & Peña Robirosa Damian F Beccar Varela Estudio Beccar Varela Jorge Colla Ernst & Young José Carlos Cueva Estudio Beccar Varela Pedro Luis de la Fuente Rattagan, Macchiavelo, Arocena & Peña Robirosa Juan De Luca Rattagan, Macchiavelo, Arocena & Peña Robirosa Santiago Deane Hope, Duggan & Silva Agustín Estévez de la Fuente Negri & Teijeiro Abogados S.C.

Krenar Loloci Loloci & Associates

Luís Pizarro AG&LP - Adelaide Godinho e Luís Pizarro, Escritório de Advogados

Arkadiusz Mierzejewski KPMG Albania sh.p.k.

Maria Augusta Rodrigues MMMC, advogados

Gustavo Garrido Estudio Garrido Abogados

Ejvis Ndoni Raiffeisen Bank

Argentina

Luciana Giudice Rattagan, Macchiavelo, Arocena & Peña Robirosa

sh.a.

Anisa Rrumbullaku Kalo & Associates

Oscar Aguilar Valdez Estudio Beccar Varela

Alban Ruli Drakopoulos Law Firm

Carlos Enrique Alfaro Alfaro Abogados

Gonzalo García Delatour Estudio Beccar Varela

Lucas Granillo Ocampo Estudio Garrido Abogados

Hector Mairal Marval, O’Farrell & Mairal Marina Martí Marval, O’Farrell & Mairal Pedro Mazer Alfaro Abogados Carlos Melham Allende & Brea Cristian H. Miguens ProsperAr - Argentina´s Investment Development Agency Rafael Monsegur Cárdenas, Di Ció, Romero, Tarsitano & Lucero Mariana Morelli Alfaro Abogados Gotardo Pedemonte Hope, Duggan & Silva Julio César Rivera Julio Cesar Rivera Abogados SRL Damián Rodríguez Peluffo Negri & Teijeiro Abogados S.C. Juan Carlos Sanguinetti Negri & Teijeiro Abogados S.C. María Lorena Schiariti Marval, O’Farrell & Mairal Luis Secco Deloitte Fernando Sedano ProsperAr - Argentina´s Investment Development Agency Ricardo V. Seeber Estudio Beccar Varela Hernán Verly Alfaro Abogados Emilio Nicolás Vogelius Estudio Beccar Varela

Contributors

171

Armenia Lianna Abelyan Armenian Development Agency Karen Andreasyan Defense LLC, law firm Sedrak Asatryan Concern-Dialog

law firm

Hermine Aslanyan Armenian Development Agency Ara Balian Paradigma Armenia CJSC Vahe Ghavalyan Paradigma Armenia CJSC Sargis Grigoryan Grigoryan & Partners Law Firm (GPARTNERS) Davit Harutyunyan PricewaterhouseCoopers Central Asia & Caucasus B.V. Armenian Branch Davit Hunanyan Defense LLC, law

firm

Gohar Karyan Arax Consulting Group, LLC Tigran Khachatryan Armenian Development Agency Nerses Nersisyan PricewaterhouseCoopers Central Asia & Caucasus B.V. Armenian Branch Martun Panosyan Concern-Dialog law

firm

Vahe Petrosyan Logicon Development LLC Gagik Poghossian Association for Foreign Investment and Cooperation (AFIC)

Austria Stefan Artner Dorda Brugger Jordis Rechtsanwälte GmbH Anton Baier Baier Böhm Rechtsanwälte Johannes Barbist Binder Groesswang Rechtsanwälte OG Eva Baumgartner Schönherr Rechtsanwälte GmbH Marcus Benes Wolf Theiss Attorneys-at-Law Thomas Christ Wolf Theiss Attorneys-at-Law Armin Dallmann CMS Reich-Rohrwig Hainz Ivo Deskovic DLA Piper Weiss-Tessbach Rechtsanwälte GmbH Christian Dorda Dorda Brugger Jordis Rechtsanwälte GmbH

Natavan Baghirova BM Interbational LLC Law Firm

Christian Herbst Schönherr Rechtsanwälte GmbH

Alum Bati Wicklow Coporate Services

Günther Horvath Freshfields Bruckhaus Deringer LLP

Zaur Fati-zadeh Ministry of Taxes

Richard Jerabek PricewaterhouseCoopers Austria

Farhad Hacizade GRATA law firm

Annette Köll Binder Groesswang Rechtsanwälte OG

Javid Hajiyev FINA LLP Law Firm

Rainer Kornfeld Schmidt/Kornfeld/Wukoschitz/ Windhager Michael Kutschera Binder Groesswang Rechtsanwälte OG Ulrike Langwallner Schönherr Rechtsanwälte GmbH Michael Lind Binder Groesswang Rechtsanwälte OG Lukas Ludwiger Binder Groesswang Rechtsanwälte OG Christian Marth Dorda Brugger Jordis Rechtsanwälte GmbH Bernhard Müller Dorda Brugger Jordis Rechtsanwälte GmbH Hannes Pachler Binder Groesswang Rechtsanwälte OG Maria Th. Pfluegl Freshfields Bruckhaus Deringer LLP Markus Pinggera Binder Groesswang Rechtsanwälte OG Nikolaus Pitkowitz Graf & Pitkowitz Rechtsanwälte GmbH Michael Podesser PricewaterhouseCoopers Austria Michael Riegler Dorda Brugger Jordis Rechtsanwälte GmbH Lorena Skiljan Wolf Theiss Attorneys-at-Law Dieter Spranz Wolf Theiss Attorneys-at-Law Melanie Tischlinger Greiter Pegger Kofler & Partners Reinhard Uhl Binder Groesswang Rechtsanwälte OG Martin Wagner KPMG Michael Walbert Schönherr Rechtsanwälte GmbH Larissa Winds Wolf Theiss Attorneys-at-Law

Gabriele Etzl Wolf Theiss Attorneys-at-Law

Evelyn Zach Wolf Theiss Attorneys-at-Law

Martin Foerster Graf & Pitkowitz Rechtsanwälte GmbH

Dieter Zandler CMS Reich-Rohrwig Hainz

Ferdinand Graf Graf & Pitkowitz Rechtsanwälte Gmbh Guenther Hanslik CMS Reich-Rohrwig Hainz

172

Florian Haugeneder Wolf Theiss Attorneys-at-Law

Thomas Zottl Freshfields Bruckhaus Deringer LLP

Azerbaijan Aykhan Asadov Baker & McKenzie - CIS, Limited

Investing Across Borders 2010

Delara Israfilova BM Interbational LLC Law Firm Vagif Karimli Baker & McKenzie - CIS, Limited Gunduz Karimov Baker & McKenzie - CIS, Limited Javanshir Mammadov GRATA law firm Aliya Movsumova Baker & McKenzie - CIS, Limited Natig Mustafayev Interjurservice Ltd Law Firm Nariman Ramazanov FINA LLP Law Firm Mahmud Yusifli Baker & McKenzie - CIS, Limited Ibrahim Zeynalov Interjurservice Ltd Law Firm

Bangladesh M.J. Abedin M.J. Abedin & Co., Chartered Accountants Shah Md. Abu Raihan Alberuni Ministry of Land Manzoor Alam Hoda Vasi Chowdhury & Co Chartered Accountants Sharif Bhuiyan Dr. Kamal Hossain & Associates Zubi Bin Moosa Dr. Kamal Hossain & Associates Abul Khair Chowdhury Hoda Vasi Chowdhury & Co Chartered Accountants Badrud Doulah Doulah & Doulah Nasirud Doulah Doulah & Doulah Shamsud Doulah Doulah & Doulah Ashraful Hadi Dr. Kamal Hossain & Associates Rezaul Hasan Supreme Court (Appellate Division & High Court Division) Amir Hossain Uniconsult International Ltd. Anamul Kabir AF Kabir & Associates Farzana Kabir AF Kabir & Associates Nihad Kabir Syed Ishtiaq Ahmed & Associates

Adeeb Khan Rahman Rahman Huq (a member firm of KPMG International) Mohammad Lutfullah Board of Investment Harun Mahmoud M.J. Abedin & Co., Chartered Accountants Parimal Nakti Rahman Rahman Huq (a member firm of KPMG International) Shakur Nasir Uniconsult International Ltd. Ataur Rahman International Chamber of Commerce - Bangladesh Safiur Rahman Uniconsult International Ltd. Golam Rasul AF KABIR & Associates Farzana Shila AF KABIR & Associates Syed Afzal Hasan Uddin Syed Ishtiaq Ahmed & Associates

Belarus Kiryl Apanasevich Sorainen (Minsk office) Kira Bondareva Vlasova Mikhel & Partners Law Firm

Anna Rusetskaya Magisters Law Firm Maksim Salahub Sorainen (Minsk

Roman Shpakovskiy Braginets & Partners

Dennis Turovets Magisters Law Firm Ann Valchok Sorainen (Minsk

Vasiliy Volozhinets Vlasova Mikhel & Partners Law Firm Igor Yatskovsky Magisters Law Firm Victoria Yurasova Magisters Law Firm Evgenia Zakharyants Vashkevich, Sapego & Khrapoutsky Alexander Zheshko Magisters Law Firm

Bolivia

Tatiana Emelianova Vlasova Mikhel & Partners Law Firm Andrei Ermolenko Vlasova Mikhel & Partners Law Firm

office)

Igor Verkhovodko Businessconsult

Alexander Buzo Magisters Law Firm

Aliaksandr Danilevich Danilevich

law firm

Viktar Strachuk Deloitte & Touche FE

Andrei Zhuk KPMG

Sergey Chistyakov Vashkevich, Sapego & Khrapoutsky

and

Cyril Shoda Magisters Law Firm

Irina Butko Magisters Law Firm

Maxim Chernyak Legal group “VERDICT BY” Ltd.

office)

Victar Sazonau Law Company Rybakov Sazonov Ltd.

Ignacio Aguirre Bufete Aguirre Soc. Civ. Fernando Aguirre Bufete Aguirre Soc. Civ. Christian Amestegui Villafani Asesores Legales CP Miguel Apt Estudio Juridico Apt (Apt Law Firm) Adrián Barrenechea Criales, Urcullo & Antezana Manuela Bustillos Rigoberto Pareded & Asociados

Elena Kagarlitskaya Magisters Law Firm

Gabriela Colomo Costas Rigoberto Pareded & Asociados

Marina Khliaba Deloitte & Touche FE

José Criales Criales, Urcullo & Antezana Abogados

Alexandre Khrapoutsky Vashkevich, Sapego & Khrapoutsky Tatsiana Klimovich Sorainen (Minsk office) Nina Knyazeva Businessconsult Nick Liakhouski Legal group “VERDICT BY” Ltd. Yulia Lyashenka Sorainen (Minsk

office)

Sergei Makarchuk Cerha Hempel Spiegelfeld Hlawati FLLC

Reazul Karim Syed Ishtiaq Ahmed & Associates

Mikalai Markounik Vlasova Mikhel & Partners Law Firm

Maherin Islam Khan Dr. Kamal Hossain & Associates

Sergey Medvedev Braginets & Partners

Narita Navin Khan Dr. Kamal Hossain & Associates

Iryna Mitsianiova Sorainen (Minsk office)

law firm

Carlos Ferreira C.R. & F. Rojas Carlos Fossati Asesores Legales CP Rodrigo Garron Bozo Garron Bozo Abogados Ramiro Moreno Baldivieso Moreno Baldivieso Estudio de Abogados Andres Moreno Gutierrez Moreno Baldivieso Estudio Abogados

Carlos Mostajo Mostajo Sociedad Civil - Firma Legal Santiago Nishizawa Quintanilla, Soria & Nishizawa Soc. Civ. Rigoberto Paredes Rigoberto Pareded & Asociados

Alejandro Pelaez Indacochea & Asociados, Abogados Mariana Pereira Indacochea & Asociados, Abogados Eduardo Quintanilla Quintanilla, Soria & Nishizawa Soc. Civ. Julio Quintanilla Quintanilla, Soria & Nishizawa Soc. Civ. Gabriel Ribera Quintanilla, Soria & Nishizawa Soc. Civ. Sergio Ruiz-Mier Ruizmier, Rivera, Pelaez, Auza SRL Juan Carlos Urenda Urenda Abogados S.C.

Mirjana Šarkinovic´ Joint Law Office of attorneys Amila Kunosic´ -Ferizovic´ and Mirjana Šarkinovic´ Dzana Smailagic-Hromic Maric´ Law Office Boris Stojanovic Law Firm “Sajic”

Caio de Queiroz Lobo & de Rizzo Advogados

Brazil Marcelo Gandelmos Barbosa, Müssnich & Aragão Advogados Eduardo Damião Gonçalves Barreto Ferreira Kujawski Brancher e Gonçalves (BKBG) João Ricardo Azevedo Ribeiro Mattos Filho, Veiga Filho, Marrey jr. e Quiroga Advogados

Hans Voss Indacochea & Asociados, Abogados

Octávio Barros Barbosa, Müssnich & Aragão Advogados

Goran Andric Karanovic´ & Nikolic´ d.o.o. Sanja Babic´ Law Firm “Sajic” Nikolina Cugalj Karanovic´ & Nikolic´ d.o.o. Višnja Dizdarevic Maric´ Law Office Eldar Dudo Wolf Theiss Amra Isic Maric´ Law Office Helena Jovanovic Karanovic´ & Nikolic´ d.o.o. Vladimir Kajkut Karanovic´ & Nikolic´ d.o.o. Edina Kasumagic Maric´ Law Office Tijana Kondic´ Law Firm “Sajic” Natasa Krejic Law Firm “Sajic” Amila Kunosic´ -Ferizovic´ Joint Law Office of attorneys Amila Kunosic´ -Ferizovic´ and Mirjana Šarkinovic´ Vildana Mandalovic Wolf Theiss Branko Maric Maric´ Law Office Vladimir Markus Wolf Theiss Sead Miljkovic Law Office Miljkovic (in cooperation with Wolf Theiss) Zdenka Miloševic´ Law Office “Pašalic´ &Šacˇi c´ ” Adnan Novo Private Law Practice Inja Pasalic Law Office “Pašalic´ &Šacˇi c´ ” Predrag Radovanovic´ Maric´ Law Office

Fábiola Augusta de Oliveira Bello Cavalcanti Barbosa, Müssnich & Aragão Advogados Ana Lúcia Pinke R. de Paiva Lobo & de Rizzo Advogados

Andrea Zubovic Wolf Theiss

Manuel Urenda Urenda Abogados S.C.

Bosnia and Herzegovina

Carlo de Lima Verona Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados

Marcelo Bez Debatin da Silveira Lobo & de Rizzo Advogados Carlos Braga Souza, Cescon Avedissian, Barrieu e Flesch - Advogados

Oswaldo Noce Dela Torre Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados Angela Di Franco Levy & Salomão Advogados Roseléa Miranda Folgosi Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados Nurimar Elias Frigeri Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados Valeria Galíndez Escritório de Advocacia Arnoldo Wald Antonio Garbelini Junior Siqueira Castro Advogados Regina Gasulla Bouza Lobo & de Rizzo Advogados

Paulo Brancher Barreto Ferreira Kujawski Brancher e Gonçalves (BKBG)

Eduardo Guedes Souza, Cescon Avedissian, Barrieu e Flesch - Advogados

Pedro Paulo Bresciani Lobo & de Rizzo Advogados

Maria Cecilia Guimarães Isoldi Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados

Felipe Cabral e Silva Barbosa, Müssnich & Aragão Advogados Andrea Caliento Domingueti Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados Joana Cardozo Machado, Meyer, Sendacz Opice Advogados Eliane Cristina Carvalho Machado, Meyer, Sendacz Opice Advogados

Jaqueline Chang Campos Mello, Pontes, Vinci & Schiller Advogados Eliana Chimenti Machado, Meyer, Sendacz Opice Advogados

Christiane Hohn Barbosa, Mussnich & Aragão Advogados Ana Paula Hubinger Araujo Lobo & de Rizzo Advogados

Juliana Scalzo Souza, Cescon Avedissian, Barrieu e Flesch - Advogados Carlos Roberto Siqueira Castro Siqueira Castro Advogados André Stocche Souza, Cescon Avedissian, Barrieu e Flesch - Advogados Ivandro Trevelim Souza, Cescon Avedissian, Barrieu e Flesch - Advogados Sérgio Varella Bruna Lobo & de Rizzo Advogados Rafael Vettori Lobo & de Rizzo Advogados Cecilia Vidigal Monteiro de Barros Xavier, Bernardes, Bragança Sociedade de Advogados Arnoldo Wald Escritório de Advocacia Arnoldo Wald Karin Yamauti Hatanaka Souza, Cescon Avedissian, Barrieu e Flesch Advogados

Bulgaria Kalin Bonev Tsvetkova Bebov & Partners, Attorneys-at-Law (Landwell Bulgaria) Kristina Dimitrova Tsvetkova Bebov & Partners, Attorneys-at-Law (Landwell Bulgaria)

Alexander Ivanov EU-BG Legal Consultants

Paula Lima Barbosa, Müssnich & Aragão Advogados

Teodora Ivanova Petkova & Sirleshtov Law Office in cooperation with CMS Cameron McKenna

Pedro Malta Barbosa, Müssnich & Aragão Advogados

Cristiane Medeiros Mamprin de Castro Guerra Lobo & de Rizzo Advogados

Maria da Graça de Almeida Prado Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados

Thereza Montoro Xavier, Barnardes, Bragança Sociedade de Advogados

Mariana Fernandes de Castro Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados

Polina Rabcheva Deloitte Bulgaria OOD

Isa Leme Lobo & de Rizzo Advogados

Francisco Coutinho Xavier, Bernardes, Bragança Sociedade de Advogados

Rafael de Carvalho Passaro Machado, Meyer, Sendacz e Opice Advogados

Alexei Santana Bonamin Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados

Denitsa Doudevska Petkova & Sirleshtov Law Office in cooperation with CMS Cameron McKenna

Juliana Correia de Araújo Levy & Salomão Advogados

Julia Santoro de Camargo Donato Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados

Bozhko Poryazov Delchev & Partners Law Firm

Manuela Leitão Barbosa, Müssnich & Aragão Advogados

Flavia Mange Barreto Ferreira Kujawski Brancher e Gonçalves (BKBG)

Paula Simonetti Junqueira de Andrade Amaral Salles Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados

Augusto César Rodrigues Levy & Salomao Advogados

Flávio Pereira Lima Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados João Otávio Pinheiro Olivério Campos Mello, Pontes, Vinci & Schiller Advogados Raphael Prado Barbosa, Mussnich & Aragão Advogados Gustavo Rebello Machado, Meyer, Sendacz Opice Advogados

Daniela Rios Levy & Salomão Advogados

Hristo Kirilov Delchev & Partners Law Firm Ilya Komarevski Tsvetkova Bebov & Partners, Attorneys-at-Law (Landwell Bulgaria) Ivan Marinov Delchev & Partners Law Firm Polina Marinova Tsvetkova Bebov & Partners, Attorneys-at-Law (Landwell Bulgaria) Juliana Mateeva KPMG Bulgaria OOD Borislav Notovsky Deloitte Bulgaria OOD Bogdana Pachilova Colliers International EOOD Ivelina Parvanova Deloitte Bulgaria OOD Vladimir Penkov Penkov, Markov & Partners, Attorneys-at-law

Nevena Radlova Petkova & Sirleshtov Law Office in cooperation with CMS Cameron McKenna Yassen Spassov Tsvetkova Bebov & Partners, Attorneys-at-Law (Landwell Bulgaria) Pavlin Stoyanoff Petkova & Sirleshtov Law Office in cooperation with CMS Cameron McKenna. Kremena Stoyanova Petkova & Sirleshtov Law Office in cooperation with CMS Cameron McKenna Borislav Stratev Deloitte Bulgaria OOD Ventsislav Tanev Stoyanov Mittov Tanev (“SMTLegal”) Desislava Vasileva Petkova & Sirleshtov Law Office in cooperation with CMS Cameron McKenna

Burkina Faso Boly Bintou Centre d’Arbitrage, de Mediation et de Conciliation de Ouagadougou (CAMC-O) Arbitration Chamber Dieudonné Bonkoungou Cabinet d’Avocats Ouédraogo & Bonkoungou Bobson Coulibaly Kéré, Avocats Fulgence Habiyaremye Kéré, Avocats Barthélemy Kéré Kéré, Avocats Abdouramane Ramses Ouédraogo Centre des Guichets Uniques Benoit J. Sawadogo Patricia Sawadogo Barterlé Mathieu Some Frank Didier Toe Bertrand Vezia Imperial Tobacco Pierre Lassané Yanogo Law firm Yaguibou & Yanogo Emmanuel Yonli Court of Appeal Safy Zonou Banque Internationale

Burkina

Cambodia Daniel Allender Allens Arthur Robinson Chantal Beaubien DFDL Mekong Sovann Bun KPMG Cambodia Ltd Rithy Chey BNG - Advocates

and

Solicitors

Rany Chung FIDES Services Cambodia

Contributors

173

Marae Ciantar Allens Arthur Robinson Tanheang Davann HBS Law Firm & Consultants Martin Desautels DFDL Mekong Senaka Fernando PricewaterhouseCoopers (Cambodia) Limited

and

Development

Martin Abega GICAM Roland Abeng The Abeng Law Firm-Cameroon

Solicitors

D. Etah Akoh Etah-Nan & Co Jacob Angoh Angoh Legal Power Law Firm

Tim Holzer DFDL Mekong

Irene Asanga Legal Power Law Firm of

Commerce

Simon Ngu Che NGU and Co LAW FIRM

ChanRaksmey Kong HBS Law Firm & Consultants

Valentine Forchak Forchak Law Firm

Vicheka Lay BNG - Advocates

Nico Halle Nico Halle Law Firm

and

Solicitors

Tayseng Ly HBS Law Firm & Consultants

Paul Jing Jing & Partners

Ho Lyhow HBS Law Firm & Consultants

Henri Job Henri Job Law Firm

Craig McDonald KPMG Cambodia Ltd.

Serge Albert Jokung Cabinet Maître Marie Andrée Ngwe

Christopher McKenzie BNG - Advocates and Solicitors Norng Meanun HBS Law Firm & Consultants Saksom Meas Morison Kak & Associes Ngoun Meng Tech Cambodia Chamber

Commerce

Meanun Norng HBS Law Firm & Consultants Pichsophal Nuon Cambodia Chamber

Commerce

Evaristus Kang Bame Kang & Co Joseph Mbitanyi Henri Job Law Firm Jean Michel Mbock Biumla M&N Law Firm Laurie Meboung Cabinet Maître Marie Andrée Ngwe Marthe-Angeline Minja Investment Code Management Unit (I.C.M.U)

Helene Ou Allens Arthur Robinson

Philip Ndikum Ndikum Law Offices

Allen Pak BNG - Advocates

Sirri Assumpta Neba Cabinet Maître Marie Andrée Ngwe

and

Solicitors

Chheang Penghay FIDES Services Cambodia Allen Prak BNG - Advocates

and

Solicitors

Praseth Prum Allens Arthur Robinson Matthew Rendall Sciaroni & Associates Ouk Ry Bou Nou Ouk Partners Vuoch Hun Seng Asia Cambodia Law Firm / Arbitration Council of Cambodia Khavan Sok Allens Arthur Robinson Henrik Stenman UNHCR Davann Tanheang HBS Law Firm & Consultants Ly Tayseng HBS Law Firm & Consultants Lay Vicheka BNG - Advocates

Cameroon

Lyhow Ho HBS Law Firm & Consultants

Sorn Kimseng Cambodia Chamber

174

the

Carlton Akkum Akkum, Akkum & Associates LLP

Rob Force DFDL Mekong Naryth Hem BNG - Advocates

Chea Vuthy Council for Cambodia

and

Solicitors

Simon Pierre Nemba Cabinet Maître Marie Andrée Ngwe Marie Andree Ngwe Cabinet Maître Marie Andrée Ngwe Andre Siaka GICAM Nadine Tinen Tchangoum Fidafrica, member of PricewaterhouseCoopers

Jeff Barnes Heenan Blaikie LLP

Ryan Middleton Heenan Blaikie LLP

José Manuel Mondaca Morales & Besa

Milos Barutciski Bennett Jones LLP

Philip Mohtadi Torys LLP

Gonzalo Navarro Morales & Besa

Véronique Bastien Heenan Blaikie LLP

John Morden Heenan Blaikie LLP

Juan Eduardo Naylor Ernst & Young Chile

Alan Bell Bennett Jones LLP

Stephen Morris Heenan Blaikie LLP

Carla Piedra BaraonaMarre-Abogados

William Braithwaite Stikeman Elliott LLP

Cathy Robinson Ontario Bar Association

Juan Carlos Pitta Urenda, Rencoret, Orrego

Todd Burke Gowling Lafleur Henderson LLP

Donald B. Roger Torys LLP

Manola Quiroz Morales & Besa

Neil Campbell McMillan LLP

Deborah Salzberger Stikeman Elliott LLP

Jeffrey Citron Heenan Blaikie LLP

John Terry Torys LLP

Ricardo Riesco Eyzaguirre Philippi Yrarrázaval Pulido & Brunner Abogados

John Clifford McMillan LLP

Gus Van Harten Osgoode Hall Law School, York University

Paul Collins Stikeman Elliott LLP William Cunningham Deloitte Donald Dalik Fasken Martineau DuMoulin LLP Rob Elliott Fasken Martineau DuMoulin LLP Andrew Elliott Stikeman Elliott LLP Michael Feldman Torys LLP Jahmiah Ferdinand-Hodkin Gowling Lafleur Henderson LLP Stanley Fisher Heenan Blaikie LLP Chris Garrah Lang Michener Paul Harricks Gowling Lafleur Henderson LLP Martha Harrison Heenan Blaikie LLP Jonathan Hood McMillan LLP Vince Imerti Gowling Lafleur Henderson LLP Tom Johnson Osgoode Hall Law School, York University John Judge Stikeman Elliott LLP James Klotz Miller Thomson LLP Markus Koehnen McMillan LLP Syll Kushner Gowling Lafleur Henderson LLP

Eric Wai Stikeman Elliott LLP Sandy Walker Fraser Milner Casgrain

Max Speis Urenda, Rencoret, Orrego

Dörr

Edmundo Varas Morales & Besa

Ivan Whitehall Heenan Blaikie LLP David Wilson Fasken Martineau DuMoulin LLP Paul Wilson Fasken Martineau DuMoulin LLP Robert Wisner McMillan LLP

Jorge Vial Urenda, Rencoret, Orrego Susannah Volpe CORFO Chile

CHINA Rebecca Andrew Simmons & Simmons

Michael Woods Heenan Blaikie LLP Raziel Zisman Fasken Martineau DuMoulin LLP Peer Zumbansen Osgoode Hall Law School, York University

Chile

Lijun Cao Zhong Lun Law Firm Sarah Chin Deloitte Touche Tohmatsu CPA Ltd. Charles Coker Morrison & Foerster LLP Heida Donegan Barlow Lyde & Gilbert

Fernando Arab V. Morales & Besa Pablo Bauer Urenda, Rencoret, Orrego

Dörr

Charles Bunce Ernst & Young Chile Mario Castillo Chilean Economic Development Agency-CORFO Gonzalo Cordero Morales & Besa

Daniel Law Fasken Martineau DuMoulin LLP

Diego Ferrada Baker & McKenzie

Canada

Andrew Little Bennett Jones LLP

George Addy Davies Ward Phillips & Vineberg

Luigi Macchione McMillan LLP

Federico Grebe Philippi Yrarrázaval Pulido & Brunner Abogados

Dalton Albrecht Miller Thomson LLP

Fasken Martineau Fasken Martineau DuMoulin LLP

Henri Alvarez Fasken Martineau DuMoulin LLP

Scott Martyn Bennett Jones LLP

Anthony Baldanza Fasken Martineau DuMoulin LLP

Mark McHughan Gowling Lafleur Henderson LLP

Jian Fang Linklaters LLP Jian Fang Linklaters LLP Li Qun Gao Deloitte Touche Tohmatsu CPA Ltd.

John Grobowski American Chamber of Commerce in Shanghai; Faegre & Benson LLP Shanghai Office (“F&B”) Wenhao Han Barlow Lyde & Gilbert Stephen Huen Barlow Lyde & Gilbert Hongji Li Commerce & Finance Law Offices

Jessie Li Linklaters LLP

Juan Pablo Matus Cariola, Diez, Perez-Cotapos & Cía. Nicholas Mocarquer Urenda, Rencoret, Orrego

Heida Donegan Barlow Lyde & Gilbert

Toby Grainger Allens Arthur Robinson

Carlos Dettleff Foreing Investment Comittee Andrés Egaña Philippi Yrarrázaval Pulido & Brunner Abogados

Investing Across Borders 2010

Carlos Silva Morales Noguera Valdivieso & Besa

Salvador Valdes Carey y Cia

Sandra Walker Stikeman Elliott LLP

Roberto Guerrero Guerrero, Olivos Novoa Errazuriz

Dörr

Jose Tagle Philippi Yrarrázaval Pulido & Brunner Abogados

Paul Lalonde Heenan Blaikie LLP

Serges Martin Zangue Cabinet Maître Marie Andrée Ngwe

Yong Liao Shanghai Shimin Law Offices Dörr

Gang Liu Commerce & Finance Law Offices

Camilo Martinez ProExport

Beirute Ignacio Quiros & Asociados - Central Law

Melita Veršic´ Marušic´ Law Office Veršic´ Marušic´

Maggie Ma Allens Arthur Robinson

Juan David Martínez Cárdenas & Cárdenas Abogados Ltda.

Vivian Jiménez Oller Abogados

Deloitte Asvjetodavne Usluge d.o.o.

Andres Mercado Oller Abogados

Czech Republic

Jie Ma Commerce & Finance Law Offices Michelle Nai Barlow Lyde & Gilbert

Diego Munoz Tamayo Munoz Tamayo & Asociados

Jennifer Pang Barlow Lyde & Gilbert

Carolina Pardo Baker & McKenzie (Bogotá Office)

Nigel Papi Allens Arthur Robinson Bin Qi Shanghai Shimin Law Offices Lester Ross Wilmer Cutler Pickering Hale Dorr LLP

Clare Montgomery Baker & McKenzie (Bogotá Office)

Daniel Peña Cavelier Abogados and

Greg Tan Morrison & Foerster LLP Wayne Wang Allens Arthur Robinson Emma Yu Barlow Lyde & Gilbert Wen Zhang Allens Arthur Robinson Debevoise & Plimpton

Colombia Mario Abdrade Perilla Deloitte Alberto Acevedo Cardenas & Cardenas Abogados Juan Pablo Barrera Prieto & Carrizosa S.A. Claudia Barrero Prieto & Carrizosa S.A. Rafael Bernal Gutierrez Centro de Arbitraje y Conciliación Cámara de Comercio de Bogotá Diana Bogotá Peña Rodríguez & Asociados Jaime Bueno Miranda KPMG

María Luisa Peña Peña Rodríguez & Asociados María Cecilia Reyes Baker & McKenzie (Bogotá Office) Adriana Rojas Cárdenas & Cárdenas Abogados Ltda. Cristina Rueda Baker & McKenzie (Bogotá Office) Sylvia Rueda Baker & McKenzie (Bogotá Office) José Roberto Sáchica Baker & McKenzie (Bogotá Office) Ricardo Trejos Baker & McKenzie (Bogotá Office) Jaime Trujillo Baker & McKenzie (Bogotá Office) Oscar Vela Cavelier Abogados Santiago Wills Lewin y Wills Abogados

Costa Rica Carlos Araya Quiros & Asociados - Central Law

Eduardo Calero PricewaterhouseCoopers

Jaime Barrantes Bufete Quiros

Eduardo Cárdenas Cárdenas & Cárdenas Abogados Ltda.

Ignacio Beirute Quiros & Asociados - Central Law

María Catalina Carmona Cavelier Abogados Jorge Chavarro Cavelier Abogados Julio González Prieto & Carrizosa S.A. Oscar Gutiérrez Estudios Palacios Lleras S.A. Jaime Herrera Posse, Herrera & Ruiz Pablo Jaramillo Estudios Palacios Lleras S.A. Alfredo Lewin Lewin y Wills Abogados Patricia Lopez Deloitte Gabriela Mancero Cavelier Abogados María Nella Marquez Cavelier Abogados

Arturo Blanco Arturo Blanco Law Maurcio Bonilla Oller Abogados Adriana Castro BLP Abogados Leonardo Castro Oller Abogados

Gabriela Miranda Oller Abogados Francisco Molinero LandCo Pedro Oller Oller Abogados Mauricio Quirós Quirós & Asociados - Central Law Rafael Quirós Quiros & Asociados - Central Law Quiros Rafael Quiros & Asociados - Central Law Paola Retana BLP Abogados Ana Victoria Sandoval JD Cano Estudio Legal Eugenio Vargas Cordero & Cordero Ricardo Vargas Oller Abogados

Côte d’Ivoire Jean-Pierre Elisha Elisha & Associes Théodore Hoegah Hoegah & Ette Noel Koffi Cabinet Noël Y. Koffi Eric Kouasi Kondo Hoegah & Ette, Associated lawyers

Jacqueline Lohoues-oble University of Cocody, Abidjan, Côte d’Ivoire Mariette N’Dohi Hoegah & Ette, Associated lawyers

Croatia Krešimir Galekovic´ Bogdanovic´ , Dolicˇki & Partners Attorneys at Law

Michal Beran Weinhold Legal, v.o.s. Pavlína Beránková Norton Rose v.o.s., kanceláˇ r

advokátní

Milana Chamberlain Norton Rose v.o.s., kanceláˇ r

advokátní

Boris Gnoth Deloitte Advisory s.r.o. Ondˇrej Havránek Weinhold Legal, v.o.s. Josef Hlavicka Havel & Holasek Ivana Husárová Balcar Polanský Eversheds Markéta Janácˇková Weinhold Legal, v.o.s. Jan Koval Havel & Holasek Tomas Kulman KPMG Czech Republic s.r.o. Jindrich Lev Lovells (Prague) LLP Jan Linhart KPMG Czech Republic s.r.o. Martin Lukáš Weinhold Legal, v.o.s. Peter Marciš Havel & Holasek Otakar Martinec Weinhold Legal, v.o.s. Pavol Mlej Balcar Polanský Eversheds Lenka Neužilová Havel & Holasek

Vladimír Prunner Norton Rose v.o.s., kanceláˇ r

advokátní

David Reiterman Norton Rose v.o.s., kanceláˇ r

advokátní

Hernan Cordero Cordero & Cordero - Abogados Daniel De la Garza JD Cano Estudio Legal

Marko Mijat Golubic´ & Partners Law Firm

Roberto Esquivel Oller Abogados

Karlo Novosel Law Office Karlo Novosel

Elizabeth Fallas Quiros & Asociados - Central Law

Sinisa Pavlovic Pavlovic & Pavlovic, Law Firm

Rolando Gonzalez C. Cordero & Cordero - Abogados

Ivana Previšic´ Law Firm Glinska & Miškovic´ Ltd.

Carolina Gutierrez Oller Abogados

Boris Šavoric´ Savoric & Partners, Attorneys at Law

Manuel Cartagena Deloitte Ecuador Xiomara Castro Coronel & Pérez Rocío Córdova Paz & Horowitz Abogados César Coronel Coronel & Pérez

Gonzalo González Real González Peñaherrera & Asociados Abogados Gonzalo González I. Galarza González Peñaherrera & Asociados Abogados Leopoldo González R. Paz & Horowitz Abogados Daniel López e2InvestEcuador David Molina e2InvestEcuador Esteban Ortiz Perez, Bustamante & Ponce Abogados Jorge Paz Durini Paz & Horowitz Abogados

Nikolina Golubic´ Golubic´ & Partners Law Firm

Ljiljana Kisegi Radevski Golubic´ & Partners Law Firm

Diego Almeida-Guzman Almeida Guzmán Asociados

Alvaro Galindo Procuraduría General del Estado/ contributed Ms. Claudia Salgado

Miroslav Dubovsky Lovells (Prague) LLP

Milan Polák Weinhold Legal, v.o.s.

Tom Hadzija Sikiric Hadzija Attorney Partnership

Ecuador

Bárbara Dotti e2InvestEcuador

Vladimir Cizek Lovells (Prague) LLP

Ronald Given Wolf Theiss Rechtsanwälte

Damir Linta Bogdanovic´ , Dolicˇki & Partners Attorneys at Law

María del Mar Herrera BLP Abogados

Jiˇrí Absolon Balcar Polanský Eversheds

Michal Zahradnik Balcar Polanský Eversheds

Daniel Pino Coronel & Pérez Felipe Ribadeneira e2InvestEcuador Paola Robalino González, Peñaherrera & Associates Xavier Rosales Corral & Rosales David Sperber Paz & Horowitz Abogados

Egypt, Arab Rep. Mohamed Yehia Abdel Hamed Khalel KPMG Hazem Hassan Nevine Abou Alam Ibrachy & Dermarkar Law Firm

Pavel Šafáˇr Konecˇná & Šafáˇr, s.r.o., advokátní kanceláˇr Dušan Sedlácˇek Havel & Holasek Dalibor Šimecˇek Weinhold Legal, v.o.s. Pavel Skopovy Lovells (Prague) LLP Vladimír Soukup Balcar Polanský Eversheds Martin Špicˇka Weinhold Legal, v.o.s. Jan Turek Weinhold Legal, v.o.s.

Abdel Moneim Abou Shaneif KPMG Hazem Hassan Youssef AL Amly Talal Abu Ghazaleh Intellectual Property Organization (Tag-legal Egypt) Ossama Badawy Badawy Law Office Omar Salah Bassiouny DLA Matouk Bassiouny Bahieldin El Ibrachy Ibrachy & Dermarkar Law Firm Sherihan EL Shal Talal Abu Ghazaleh Intellectual Property Organization (Tag-legal Egypt) Hani El Sharkawi El Sharkawi & Associates

Contributors

175

Ahmed Haggag Sharkawy & Sarhan Law Firm

Florence Chérel Herbert Smith LLP

Tarek Mansour PricewaterhouseCoopers LLC

Vladimir Comte Gide Loyrette Nouel A.A.R.P.I.

John Matouk DLA Matouk Bassiouny

John D. Crothers Gide Loyrette Nouel A.A.R.P.I.

Bridget McKinney Denton Wilde Sapte - Cairo

Alain De Foucaud Taylor Wessing

Tarek Riad Kosheri, Rashed

Laurence Debon Hughes Hubbard & Reed LLP

and

Riad

Yasmine Sakr Badawy Law Office

Dominique Doise ALERION

Radwa Sarhan Sharkawy & Sarhan Law Firm

Bruno Dondero Castaldi Mourre & Partners

Mohammed Shaker Shalakany Law Office

Gaspare Dori Castaldi Mourre & Partners

May Soleiman Ibrachy & Dermarkar Law Firm

Janice Feigher Castaldi Mourre & Partners

Jim Wright Sharkawy & Sarhan Law Firm

Marc Frilet Frilet Law firm

Shereen Zaky Shalakany Law Office

Yi-Ta Hou Ichay & Mullenex Avocats

Ethiopia

Frédéric Ichay Ichay & Mullenex Avocats

Tameru Agegnehu Tameru Wondm Agegnehu Law Offices Bekure Assefa Bekure Assefa Law Office Dembel Balcha Ethiopian Consultants Association Tesfaye Bekele Addis Ababa Chamber of Commerce and Sectoral Associations Tsegaye Bekele Tsegaye’s Legal Office Zewde Biratu Zewde & Assocaites Plc Teshome Gabre-Mariam Bokan Tehsome Gabre-Mariam Bokan Law Firm Demissie Gebremichael A.A. Bromhead & Associates Tsegae Teklu Zewde & Assocaites Plc Kebede Worke Kebede Worke & Associates

France Bingen Amezaga Castaldi Mourre & Partners Renaud Baguenault de Puchesse Gide Loyrette Nouel A.A.R.P.I.

Jennifer Kirby Herbert Smith LLP Florent Lager Frilet Law Firm Hervé Le Lay Gide Loyrette Nouel A.A.R.P.I. Philippe Mathurin ALERION Alexis Mourre Castaldi Mourre & Partners Nadège Nguyen Gide Loyrette Nouel A.A.R.P.I. Priscille Pedone Castaldi Mourre & Partners Véronique Quèruel Gide Loyrette Nouel A.A.R.P.I. Rupert Reece Gide Loyrette Nouel A.A.R.P.I. José Rosell Hughes Hubbard & Reed LLP Pierre-Nicolas Sanzey Herbert Smith LLP Salli Anne Swartz Phillips Griaud Naud Swartz Alexandre Vagenheim Castaldi Mourre & Partners

Georgia

Denis Bandet Herbert Smith LLP

Keti Beradze BGI Legal

Denis Bensaude Sole practitioner

Paul Cooper PricewaterhouseCoopers

Fabio Bonaglia Castaldi Mourre & Partners

Konstantine Eristavi “Getsadze & Pateishvili” LP

Jacques Bouyssou ALERION

Tamar Gvaramia BGI Legal

Pierre-Olivier Brouard ALERION

Gvantsa Karanadze GP “Vashakidze and Bazerashvili Attorneys in Tbilisi” (VBAT)

Jacques Buhart Herbert Smith LLP Maria Beatriz Burghetto Hughes Hubbard & Reed LLP Alexandre Chanoux Herbert Smith LLP

176

Christian Kim ALERION

Anastasia Kipiani PricewaterhouseCoopers Salome Sartania Law Firm “Getsadze & Pateishvili”

Investing Across Borders 2010

Gela Vadachkoria GP “Vashakidze and Bazerashvili Attorneys in Tbilisi” (VBAT) Zurab Vanishvili Zurab Vanishvili Law Firm Jane Wiegand Zurab Vanishvili Law Firm

Ghana Daniyal Abdul-Karim Legal Ink Elsie Addo Lawfields Consulting Seth Adom-Asomaning Peasah-Boadu & Co Seth Agyapong-Mensah Fugar & Company Hawa Ajei Bentsi-Enchill, Letsa & Ankomah Azanne Kofi Akainyah A & A Law Consult Innocent Akwayena REM Law Consultancy Emma Amakye A & A Law Consult John Amakye A & A Law Consult Nene Amegatcher Sam Okudzeto & Associates Emmanuel Amofa Lawfields Consulting Wilfred Kwabena Anim-Odame Land Valuation Division, Lands Commission Yaw Asante-Boadi Ernst & Young Joe Debrah The 1st Law Office Daniel Dweteh-Agyare Fountain Chambers Elizabeth Eshun Bentsi-Enchill, Letsa & Ankomah Georgette Francois Francois & Associates William Fugar Fugar & Company Cynthia Jumu Fountain Chambers Rosa Kudoadzi Bentsi-Enchill, Letsa & Ankomah Paul Kumahor Ernst & Young Kenneth Laryea Laryea, Laryea & Co PC Office Divine Kwaku Duwose Letsa Bentsi-Enchill, Letsa & Ankomah Sammani Mohammed Legal Ink David Ofosu-Dorte AB & David Law Affiliates Yaw Osafo Francois & Associates Valarie Senavor Sam Okudzeto & Associates Joseph Winful KMPG Ghana Michael Xatse REM Law Consultancy

Greece Ioanna Anastassopoulou V&P Law Firm Vassilis Chryssomalis Sarantitis Law Firm

Prokopis Dimitriadis Lambadarios Law Offices Thalia Emiri Sarantitis Law Firm Apostolos Giannakoulias V&P Law Firm Dimitris Giomelakis Ince&Co International Law Firm George Iatridis-Ramantanis Ince&Co International Law Firm and

Alfonso Novales Abogados y Notarios Novales Marcos Palma Firma de Abogados

Vassilios Constantes V&P Law Firm

Nikolas Iliopoulos Bahas, Gramatidis (Law Firm)

Cristián Novales Abogados y Notarios Novales

Partners

Héctor Palomo A.C. Palomo / Porras Rita Perez A.D. Sosa & Soto Juan José Porras Castillo A.C. Palomo & Porras Liliana Sanchez A.D. Sosa & Soto Rafael Sánchez Firma de Abogados Rodolfo Sosa A.D. Sosa & Soto Manuel Soto A.D. Sosa & Soto

Dimitris Kapsis Ince&Co International Law Firm

Juan Soto A.D. Sosa & Soto

Antonis Katsigiannis Sarantitis Law Firm

Haiti

Constantinos Klissouras Anagnostopoulos Bazinas

Djacaman Charles Cabinet Gassant

John Mazarakos Elias Paraskevas Attorneys 1933

Deanna Durban Pasquet, Gousse & Associes

Theodora Monochartzis Sarantitis Law Firm

Enerlio Gassant Cabinet Gassant

Themis Oikonomidi V&P Law Firm

Wladimir Gassant Cabinet Gassant

Theodora Papadopoulou V&P Law Firm

Bernard Gousse Pasquet, Gousse & Associes

Antonia Pediaditaki Antonia Pediaditaki Law Office

Robert Laforest Cabinet Laforest Maurasse & Associes

Terina Raptis Sarantitis Law Firm Loukas Roufos V&P Law Firm Dorotheos Samoladas Sarantitis Law Firm Nikos Stavroulakis Bahas, Gramatidis and Partners (Law Firm)

Patricia Lebrun Cabinet Vieux & Associates Christian Lespinasse Cabinet de Lespinasse Sibylle Mevs Theard & Associes Gerd Pasquet Pasquet, Gousse & Associes

Michael Stefanakis Elias Paraskevas Attorneys 1933

Sarah Pean-Vieux Cabinet Vieux & Associates

Elias Tsaoussis V&P Law Firm

Sylvie Roy Handal Hudicourt-Woolley

Michael Tsibris Moussas & Tsibris

Jean-Frederic Sales Cabinet Sales

Yannis Tsigkounakis V&P Law Firm

Sybille Theard Mevs Theard & Associes

Guatemala

Elisabeth Woolley Cabinet Dantes P. Colimon

Rafael Arcia Arcia Rodriguez & Associates

Honduras

Yessica Argueta Firma de Abogados

Juan Alcerro-Milla AguilarCastilloLove

Luis Cobar Firma de Abogados

Sergio Bendaña Lopez Lopez Rodezno & Asociados

Karina Dávila Firma de Abogados

Carmen Irene Canales Casco-Fortin, Cruz & Asociados

Silvia Gándara Abogados y Notarios Novales

Julissa Flores Claudino Bufete Rosa y Asociados, S.A.

Brenda Lambour Arcia Rodriguez & Associates

Camilo Janania Aguilar Castillo Love

Javier Novales Abogados y Notarios Novales

Jorge Lopez Loewemberg Lopez Rodezno & Asociados

Claribel Medina Medina, Rosenthal & Fernandez / Central Law Jesus Humberto Medina Medina, Rosenthal & Fernandez / Central Law Honduras Carlos Alejandro Pineda Pinel Pineda Bocanegra & Asociados Enrique Rodriguez Aguilar Castillo Love Leonidas Rosa Suazo Bufete Rosa y Asociados, S.A. Vanessa L. Velasquez Casco-Fortin, Cruz & Asociados

India

Amruta Kelkar Juris Corp

Namrata Shroff ALMT Legal

Andry Wisnu Soebagjo, Jatim, Djarot

Vinita Sithapathy Talwar Thakore and Associates

Richard Yapsunto DNC Advocates at Work

Ahtesham Khatri Khaitan & Co.

Ritu Taimni Talwar Thakore

Gunadarma DNC Advocates

Krishna Kishore Vaish Associates, Advocates

Sameer Tapia ALMT Legal

Kusumohadiani Melli Darsa & Co.

Ketan Kothari T&T Consulting Corporate Services

Bijesh Thakker Thakker & Thakker

Ireland

Bahram Vakil AZB & Partners

Susan Bryson Mason Hayes + Curran

Namrata Wadhawan Koura & Company (Advocates & Barristers)

Vanessa Byrne Mason Hayes + Curran

Yuki Mukaeda Allen & Overy Gaikokuho Kyodo Jigyo Horitsu Jimusho

Gearoid Carey Matheson Ormsby Prentice

Akira Nagasaki Nishimura & Asahi Law Offices

John Coman A&L Goodbody

Kyoko Naka Allen & Overy Gaikokuho Kyodo Jigyo Horitsu Jimusho

Kiran Khanna Talwar Thakore

and

Associates

Tarunya Krishnan Khaitan & Co. Neeraj Kumar Dua Associates

Fraser Alexander Juris Corp

Rakesh Kumar Koura & Company (Advocates & Barristers)

Karan Arya Archer & Angel

Prachi Loona Juris Corp

Shashivansh Bahadur Dua Associates

Khalid M. K. Odeh Abu-Ghazaleh Intellectual Property TMP Agents India Private Limited

Rajendra Barot AZB & Partners

and

Associates

Indonesia Arie Armand DNC Advocates At Work Jarring Bachroemsjah BMD & Partners Law Firm Arry Dinar BMD & Partners Law Firm

Ankit Majmudar Wadia Ghandy & Co.

Marion Elisabeth DNC Advocates at Work

Ashish Malkotia Dua Associates

Eunice Hadiprodjo Makarim & Taira S.

Ashwin Mathew Khaitan & Co.

Susan Hanindriyowati Soebagjo, Jatim, Djarot

Chandrashekhar Mishra Dua Associates

Wahyuni Hanindriyowati Soebagjo, Jatim, Djarot

Chakrapani Misra Khaitan & Co.

Andreas Hartono BMD & Partners, Law Firm

Sudip Mullick Khaitan & Co.

Alexander Hutauruk DNC Advocates at Work

Yatin Narang Vaish Associates, Advocates

Kuntum Apriella Irdam Melli Darsa & Co.

Bhavik Narsana Khaitan & Co.

Ratna Iskandar Makarim & Taira S.

Huzefa Nasikwala Juris Corp

Fatmah Jatim Soebagjo, Jatim, Djarot

Nohid Nooreyezdan AZB & Partners

David Kairupan BMD & Partners Law Firm

Shiju P.V Hemant Sahai Associates

Chittranjan Dua Dua Associates

Sugianto Osman Melli Darsa & Co.

Alpesh Parekh ALMT Legal

Sumedha Dutta Hemant Sahai Associates

Eka Prasetia BMD & Partners Law Firm

Renu Parekh ALMT Legal

Sambuddha Dutta Khaitan & Co.

Rieke Savitri Soebagjo, Jatim, Djarot

Ami Parikh ALMT Legal

Munindra Dvivedi Koura & Company (Advocates & Barristers)

Ibrahim Senen DNC Advocates

Lakshmi Priya ALMT Legal

Frederick Simanjuntak Makarim & Taira S.

Hemant Puthran Vaish Associates, Advocates

Margarete Sitompul Bahar and Partners

Manish Rajani ALMT Legal

Hendronoto Soesabdo Hadiputranto, Hadinoto & Partners

Sonal Bhandari Juris Corp Amit Bhandari Vaish Associates, Advocates Marezban Bharucha Bharucha & Partners Anil Kumar Bhatnagar Dua Associates Ankana Chatterjee Hemant Sahai Associates Aakash Choubey Khaitan & Co. Deepa Christopher Talwar Thakore and Associates Bomi Daruwala Vaish Associates, Advocates Srijoy Das Archer & Angel Angeli Dayal Koura & Company (Advocates & Barristers)

Aliff Fazelbhoy ALMT Legal Deblina Gooptu ALMT Legal Sohana Islam ALMT Legal Rabindra Jhunjhunwala Khaitan & Co. Varun Kalsi Dua Associates Vaishakh Kapadia ALMT Legal Farid Karachiwala Wadia Ghandy & Co. Sanjeev Kaul Dua Associates

Statira Ranina ALMT Legal Abhinav Rastogi Dua Associates Vandana Sekhri Juris Corp Shayur Shah Hemant Sahai Associates Sonali Sharma Juris Corp Prabhat Shroff Shroff & Company

Work

Gita Syahrani DNC Advocates At Work

Work

Sharon Daly Matheson Ormsby Prentice Dorothy Hargaden McCann FitzGerald William Johnston Arthur Cox Colin Keane McCann FitzGerald Joe Kelly A&L Goodbody

Sakai Mimura Aizawa Foreign Joint Enterprise Mitsuharu Kataoka Allen & Overy Gaikokuho Kyodo Jigyo Horitsu Jimusho Akira Kawamura Anderson Mori & Tomotsune Yoshio Mataichi LTE Law Offices Kunihiko Morishita Anderson Mori & Tomotsune

Taro Nakashima Allen & Overy Gaikokuho Kyodo Jigyo Horitsu Jimusho Yoshitaro Nomura Akasaka Nomura Sogo Law Firm Yoshinori Ono Nishimura & Asahi Law Offices Rahima Patel Herbert Smith

Kevin Kelly McCann FitzGerald

Shunsuke Saeki Allen & Overy Gaikokuho Kyodo Jigyo Horitsu Jimusho

Siobhán Kirrane A&L Goodbody

Yoshihiro Sakano Nishimura & Asahi Law Offices

Rory Kirrane Mason Hayes + Curran

Nathan Schmidt Nishimura & Asahi Law Offices

Dylan Latimer Mason Hayes + Curran

Kimitoshi Yabuki Yabuki Law Offices

Dermot McEvoy Eversheds O’Donnell Sweeney

Hiroki Yamada Nishimura & Asahi Law Offices

Michael Neary Eversheds O’Donnell Sweeney

Kazakhstan

Robert O’Shea Matheson Ormsby Prentice

Saida Akhmetova Salans LLP (Almaty)

Stephen Proctor McCann FitzGerald

Khairulla Akimkhanov Magisters

Klaus Reichert Law Library/Brick Court Chambers

Viktoriya Alzhanova Magisters

Peppe Santoro Eversheds O’Donnell Sweeney

Ainur Atekeyeva Salans LLP (Almaty)

Japan

Rakhat Baisuanov Signum Law Firm

Yoshiyuki Aoki LTE Law Offices

Jypar Beishenalieva Michael Wilson & Partners Ltd.

Peter Godwin Herbert Smith

Kamilya Berkaliyeva Salans LLP (Almaty)

Keiko Honjo Allen & Overy Gaikokuho Kyodo Jigyo Horitsu Jimusho

Ainura Bultekova Signum Law Firm

Naoki Iguchi Anderson Mori & Tomotsune

Yuliana Tjhai Bahar and Partners

Osamu Ito Allen & Overy Gaikokuho Kyodo Jigyo Horitsu Jimusho

Aulia Ulfah Bahar and Partners

Yuriko Ito Nishimura & Asahi Law Offices

Michael Adrian Widjanarko Soebagjo, Jatim, Djarot

Tetsuya Itoh Anderson Mori & Tomotsune

Wimbanu Widyatmoko Hadiputranto, Hadinoto & Partners

Dai Iwasaki Anderson Mori & Tomotsune Hiroyuki Kanae Bingham McCutchen Murase

Anastassiya Chechel Magisters Shaimerden Chikanayev Dewey & LeBoeuf LLP Botagoz Darbabayeva Salans LLP (Almaty) Ward Jones KPMG Tax & Advisory LLC Assel Kazbekova Michael Wilson & Partners, Ltd. Marta Khomyak Magisters

Contributors

177

Gaukhar Kudaibergenova Signum Law Firm

Peter Le Pelley Hamilton Harrison & Mathews

Yuliya Mitrofanskaya Salans LLP (Almaty)

Emily Matano Maobe Maotsetung & Company Advocates

Abylhair Nakipov Signum Law Firm Larissa Orlova Michael Wilson & Partners, Ltd. Aliya Rakhimbekova Salans LLP (Almaty) Valeriy Shatov KPMG Tax & Advisory LLC Rahim Shimarov Salans LLP (Almaty) Arman Tastanbekov Dewey & LeBoeuf LLP Gulnara Tulegenova Dewey & Leboeuf LLP Valery Zhakenov Law firm “Zhakenov&Partners” Danat Zhakenov Law firm “Zhakenov&Partners” Birzhan Zharasbayev Salans LLP (Almaty)

Muriuki Mugambi Muthaura Mugambi Ayugi & Njonjo Advocates Njau Mukuha Daly & Figgis Advocates Joyce Mukururi Simba & Simba Advocates Paul. O. Mungla Rachier & Amollo Bernard Murunga Simba & Simba Advocates Suzanne Muthaura Muthaura Mugambi Ayugi & Njonjo Advocates John M. Mutungi Muthoga Gaturu & Company Advocates

Sofiya Zhylkaidarova Signum Law Firm

Dellah Mwihaki Muthoga Gaturu & Company Advocates

Kenya

Patrick Mwiti Muthoga Gaturu & Company Advocates

Otiende Amollo Rachier & Amollo Jotham O. Arwa Rachier & Amollo Carole Ayugi Jalango Muthaura Mugambi Ayugi & Njonjo Advocates Nekesa Barasa Jackline P. A. Omolo & Company Advocates Daniel Barongo Njoroge Regeru & Company Advocates Ashwini Bhandari Daly & Figgis Advocates Vicky Bharij Daly & Figgis Advocates Brenda Brainch Dispute Resolution Centre Protas Gathege Soita & Saende Advocates Caroline Gichuri Muthoga Gaturu & Company Advocates Anthony Gross Dispute Resolution Centre Nigel Jeremy Daly & Figgis Advocates Patrick Kariuki Muthoga Gaturu & Company Advocates Mwangi Karume Njoroge Regeru & Company Advocates Kiragu Kimani Hamilton Harrison & Mathews David Kimani Njoroge Regeru & Company Advocates Angela Kiptoo Muthoga Gaturu & Company Advocates

178

John Mbaluto Njoroge Regeru & Company Advocates

Waringa Njonjo Muthaura Mugambi Ayugi & Njonjo Advocates Kimani Njuguna Njoroge Regeru & Company Advocates

Korea, Rep. Cheolhyo Ahn Yulchon Yun-Jae Baek Hanol Law Offices Tae-Jin Cha Yulchon Seungwoo (Sean) Cho Bae, Kim & Lee LLC Young Sun Cho Yoon Yang Kim Shin & Yu (Hwawoo in Korean) Chunghwan Choi DW Partners Kyung-Hoon Chun Kim & Chang Bong Hee Han Yulchon Kim Hyo-sang Kim & Chang Jae Woo Im Shin & Kim Kevin (Kap-You) Kim Bac, Kim & Lee LLC

Kyrgyz Republic

Chul Min Shin DW Partners

Alexander Ahn Kalikova & Assosiates

Dong Yeol Shin Hanol Law Offices Young Jae Shin Yoon Yang Kim Shin & Yu (Hwawoo in Korean) Tong-chan Shin Yulchon

Jin-ho Song Kim & Chang

Aisulu Kambarova Law company “Egemberdieva & Partners” LLC

S.J Woo DW Partners

Marina Lim Kalikova & Associates

SoongKi Yi Yoon Yang Kim Shin & Yu (Hwawoo in Korean)

Nikolai Malyshev VERITAS Law Agency LLC

law firm

Jun Kul Yoo Bac, Kim & Lee LLC

Salima Moldokmatova Law company “Egemberdieva & Partners” LLC

Hee Woong Yoon Yulchon

Natalia Molodanova VERITAS Law Agency LLC

Kosovo

Aselya Ten “Kalikova and Associates”

Beomsu Kim Shin & Kim

Victor Chimienti Studio Legale Chimienti (SLC)

Shang Kymn Dr & Aju International

Iva Cucllari Boga & Associates

Jae-Eun Lee Bae, Kim & Lee LLC

Mustafë Hasani IPAK- Ministry of Trade Industry

Trade

and

Shaazadan Tiumonbaev The Ministry of Economic Development and Trade

Liberia Vannii Baker National Investment Commission

and

Christine Freeman Copper & Togbah Law Office Cooper Kurah The Henries Law Firm

Virtyt Ibrahimaga Law Firm IOT L.L.C

Massa Lansanah Liberia Chamber of Commerce

Besim Jashari IPAK- Ministry Industry

Richard Omwela Hamilton Harrison & Mathews

Yong Woo Lee Shin & Kim

Renata Leka Boga & Associates

Simon Ondiek Chartered Institute (K) Branch

Seungmin Lee Shin & Kim

Christoph Liebscher Wolf Theiss Attorneys-at-Law, Vienna

Macedonia, FYR

Rainer Lukits Wolf Theiss Attorneys-at-Law, Vienna

Svetlana Andreovska Monevski Law Firm

Arbitrators

George O. Oraro Oraro & Company

Jay K. Lee Yoon Yang Kim Shin & Yu (Hwawoo in Korean)

Collins Oyomba Muthoga Gaturu & Company Advocates

Young Seok Lee Yulchon

A.D.O. Rachier Rachier & Amollo Dominic Rebelo Daly & Figgis Advocates Njoroge Regeru Njoroge Regeru & Company Advocates Paras Shah Hamilton Harrison & Mathews John P.N. Simba Simba & Simba Advocates Caroline Thuo Njoroge Regeru & Company Advocates

Young-Hill Liew Yulchon Eun-Soo Lim Bae, Kim & Lee LLC Jung-Ha Lim Hwang Mok Park P.C. Sedong Min Lee & Ko James E. Morrison Bae, Kim & Lee LLC Yon-kyun Oh Kim & Chang Sang Il Park Hwang Mok Park P.C.

Julius Wako Daly & Figgis Advocates

Eun-Young Park Kim & Chang

Fresiah Wambui Githua Muthaura Mugambi Ayugi & Njonjo Advocates

Sungjean Seo Kim & Chang

Prestone Wawire Maobe Maotsetung & Company Advocates

Investing Across Borders 2010

Jangwon Seo Shin & Kim B,M Shim DW Partners

law

firm

Kyu Wha Lee Lee & Ko

Jackline Omolo Jackline P. A. Omolo & Company Advocates

law

Jomart Joldoshev Lorenz law Firm

Doil Son Hwang Mok Park P.C.

Gene Oh Kim Kim & Chang

Jung Myung Lee Hwang Mok Park P.C.

Satkyn Beketaeva “Kalikova and Associates” firm

Remzi Ahmeti IPAK- Ministry Industry

Jong Jae Lee Hanol Law Offices

law firm

Elena Babitskaya VERITAS Law Agency LLC

Trade

and

Henry A. Lewis Sr. Liberia Electricity Coporation

Goce Adamceski ACT! Consultancy Services Ltd.

Christian Mikosch Wolf Theiss Attorneys-at-Law, Vienna

Emilija Apostolska Stankovski, Markovic, Apostolska & Velovska Attorneys and Counselors at Law

Robert Muharremi Ramajli & Partners - Law Firm

Aleksandra Arsoska Lawyers Antevski

Gazmend Pallaska Pallaska&Associates

Petar Blazevski Attorneys at law Debarliev,Dameski i Kelesoska

Artila Rama Boga & Associates Ilaz Ramajli Ramajli & Partners - Law Firm

Vladimir Bocevski Mens Legis Cakmakova Advocates Skopje

Xhylizare Selimi Ramajli & Partners - Law Firm

Dance Cakarovska Law Office Cakarovska

Besa Tauzi Boga & Associates

Ljupco Cvetkovski Debarliev, Dameski & Kelesoska, Attorneys at law

Ened Topi Boga & Associates Gail Warrander Gw Legal LLC Larissa Winds Wolf Theiss Attorneys-at-Law, Vienna

Gjorgji Georgievski Georgi Dimitrov Attorneys Pavlinka Golejski Mens Legis Cakmakova Advocates Skopje Olivera Grozdanovska Mens Legis Cakmakova Advocates Skopje

Darko Janevski ACT! Consultancy Services Ltd.

Jean Marcel Razafimahenina Delta Audit

Jean Claude Sidibé JCS Conseils

Pandora Kimova Kimova Law Office

Michèle Razafimbelo Cabinet Rakotoarivony

Fatoumata Sidibe-Diarra Brysla Conseils

Aleksandar Markovic Stankovski, Markovic, Apostolska & Velovska Attorneys and Counselors at Law

FTHM

Boubacar A. S. Sow

Malaysia

Bassalifou Sylla Brysla Conseils

Elena Miceva Debarliev, Dameski & Kelesoska, Attorneys at law Irena Mitkovska Lawyers Antevski

Mohd Farizal Farhan bin Abd Ghafar Azmi & Associates Mohamed Hadi Abd Hamid Azmi & Associates

Aleksandra Mocanoska Lawyers Antevski Valerjan Monevski Monevski Law Firm

Ilija Nedelkoski Mens Legis Cakmakova Advocates Skopje Katarina Panova Georgi Dimitrov Attorneys

Tuck Sun Lim Chooi & Company Gary Lim Shearn Delamore & Co. Suhara Mohamad Sidik Azmi & Associates

Kiril Papazoski Monevski Law Firm Dejan Stankovski Stankovski, Markovic, Apostolska & Velovska Attorneys and Counselors at Law Sandra Velovska Stankovski, Markovic, Apostolska & Velovska Attorneys and Counselors at Law

Madagascar Landivola Andrianarisoa FIDAFRICA Madagascar member of PricewaterhouseCoopers Raphaël Jakoba Madagascar Conseil International (MCI)

Namory Traore Ministere de l’industrie,

des

Dev Chamroo Board of Investment

Azucena Marin Cuesta Campos S.C.

Natalia Isiumbeli Isiumbeli & Partnerii

Namrata Gaya Appleby (Mauritius) Ltd.

Deborah Massiel Mujaes Pola Jáuregui, Navarrete y Nader, S.C.

Dumitru Ivanov Brodsky Uskov Looper Reed & Partners

Carolyn Grenade Banymandhub Boolell Chambers

José Noguera Santamarina y Steta, S.C.

Cristina Martin ACI Partners Law Office

Nirmala Jeetah Board of Investment

Alejandro Ogarrio Ogarrio Daguerre S.c.

Igor Odobescu ACI Partners Law Office

Ana Gabriela Olmedo Sanchez-DeVanny Eseverri, S.C.

Aelita Orhei Gladei & Partners

Elsa Ortega Azar, Ortega S.C.

Carolina Parcalab Turcan & Turcan

Li May Ong Shahrizat Rashid & Lee

Cristelle Parsooramen Banymandhub Boolell Chambers

Bee Hong Ooi Lee Hishammuddin Allen & Gledhill

Siv Potayya Juristconsult Chambers

Rosinah Mohd Salle Azmi & Associates

Mexico

Commerce

Jose Ignacio Alonso Serrano Solorzano, Carvajal, Gonzalez Perez-Correa, S.C.

Sahondra Rabenarivo Madagascar Law Offices

Stefhenie Zoes Maiks Azmi & Associates

Cecilia Azar Azar, Ortega & Gomez Ruano, S.C.

Mali

Marco Carrasco Solorzano, Carvajal, Gonzalez Perez-Correa, S.C.

Thierry Rakotoarison ATW Consultants Hary Rakotoarivony Cabinet Rakotoarivony Jacques Rakotomalala Cabinet d’avocats Rakotomalala Rija Rakotomalala Cabinet d’avocats Rakotomalala Lanto Tiana Ralison FIDAFRICA Madagascar member of PricewaterhouseCoopers Bako Hantaniaina Randriamalala Cabinet Rakotoarivony Yann Rasamoely Ernst & Young

Oumar Bane Jurifis Consult

Asociados,

Gómez Ruano,

Gogu Sergiu Moldovan Investment and Export Promotion Organisation

Adrian Soroceanu ACI Partners Law Office

Gloria Park T. Santamarina y Steta, S.C. Luciano Pérez Jáuregui, Navarrete y

Nader, S.C.

Fernando Pérez Correa Solorzano, Carvajal, Gonzalez Perez-Correa, S.C. Ariel Ramos White & Case, SC.

Maria José Armenta Cuesta Campos y Asociados, S.C.

Melina Yong Raslan Loong

Alvaro Orvañanos Creel, García-Cuéllar, Aiza Enríquez, S.C.

Estuardo Anaya Santamarina y Steta, S.C.

Pascaline Rabearisoa Delta Audit

Thierry Rajaona Groupement des Entreprises Madagascar

Corneliu Isiumbeli Isiumbeli & Partnerii

Malcolm Moller Appleby (Mauritius) Ltd.

partners

Sergiu Gogu Moldovan Investment and Export Promotion Organisation

Daniel Maldonado Alcanatara Sanchez-DeVanny Eseverri, S.C.

Marhaini Nordin Shearn Delamore & Co

Ai Leen Tang Zul Rafique &

Roger Gladei Gladei & Partners

Gerardo Lozano Alarcón Gallástegui y Lozano, S.C.

Hamid Jhumka Mauritius Chamber and Industry

Zandra Tan Zul Rafique & Partners

Iulia Furtuna Turcan & Turcan

Valeriu Gritco Law Firm of Valeriu Gritco, Bar Association of the Republic of Moldova

Azmi Mohd Ali Azmi & Associates

Guat Har See Shearn Delamore & Co.

Franco Lammoglia Solorzano, Carvajal, Gonzalez Perez-Correa, S.C.

Vikash Boolell Banymandhub Boolell Chambers

Mee Kiong Ding Shearn Delamore & Co

Aneta Mostrova Mostrova Law firm

Carlos Ibarra Creel, García-Cuéllar, Aiza Enríquez, S.C.

Ahmadou Touré

Urmila Banymandhub Boolell Banymandhub Boolell Chambers

Patsy Chin Shahrizat Rashid & Lee

Serghei Filatov ACI Partners Law Office

Yves Hayaux-du-Tilly Jáuregui, Navarrete y Nader, S.C.

Mauritius

Aileen PL Chew Shearn Delamore & Co.

Vitalie Ciofu Gladei & Partners

Hernan González Estrada White & Case, S.C.

investissements et du commerce

Azlin Azhar Azmi & Associates

Biljana Mladenovska Lawyers Antevski

Francisco Gonzalez de Cossio González de Cossío Abogados, S.C.

Claudia Robles Cuesta Campos S.C.

Asociados,

María Sánchez de Tagle Von Wobeser y Sierra, S.C. y

Cristina Sanchez Vebber Sanchez-DeVanny Eseverri, S.C.

Cornel Sotnic Brodsky Uskov Looper Reed & Partners Mariana Stratan Turcan & Turcan Andrei Timus Moldovan Investment and Export Promotion Organisation Irina Verhovetchi ACI Partners Law Office Carolina Vieru IM P.A.A. SRL Marina Zanoga Turcan & Turcan

Montenegro

Fatou Diallo Seck

Vicente Corta White & Case, SC.

Berenice Soto Cuesta Campos S.C.

Boubacar Diarra JCS Conseils

Eduardo Corzo Ramos Gallástegui y Lozano, S.C.

Pietro Straulino Sanchez-DeVanny Eseverri, S.C.

Mahamane Djiteye Jurifis Consult

Cesar Cruz-Ayala Santamarina y Steta, S.C.

Ivana Kojic Karanovic & Nikolic Law Office

Djibril Guindo Jurifis Consult

Miguel Ángel De la Fuente Estrada Jáuregui, Navarrete y Nader, S.C.

Jorge Torres Creel, García-Cuéllar, Aiza Enríquez, S.C.

Milan Lazic Karanovic & Nikolic Law Office

Mamadou Konate Jurifis Consult Mamadou Koroba Traore Chambre de Commerce et d’Industrie du Mali - Chambre Conciliation et d’Arbitrage

Mialy Ratsimba FIDAFRICA Madagascar member of PricewaterhouseCoopers

Fily Mallé Chambre de Commerce et d’Industrie du Mali - Chambre Conciliation et d’Arbitrage

Andriamisa Ravelomanana FIDAFRICA Madagascar member of PricewaterhouseCoopers

Keita Zeinabou Sacko Agence pour la Promotion Investissements (API Mali)

Fernando del Castillo Santamarina y Steta, S.C. de

Fernando Eraña Solorzano, Carvajal, Gonzalez Perez-Correa, S.C. Roberto Gagoaga Sánchez-DeVanny Eseverri, S.C.

des

Sofia Gomez Ruano Azar, Ortega & Gomez Ruano, S.C.

Asociados,

Rafael Villamar Sanchez-Devanny Eseverri, S.C. Claus Von Wobeser Von Wobeser y Sierra, S.C.

Moldova Victor Burac Individual Law Office “Victor Burac” Andrei Caciurenco ACI Partners Law Office Marin Chicu Turcan & Turcan

Marko Ivkovic Karanovic & Nikolic Law Office

Andjela Milosevic Montenegro Business Alliance Novica Peshic Law Office Vujacic Zorica Peshic-Bajceta Law Office Vujacic Novica Pešic´ Law Office Vujacic Ivana Rackovic Karanovic & Nikolic Law Office Dejan Radinovic IKRP Rokas & Partners - Radinovic Law Firm

Contributors

179

Aleksandra Tomkovic PricewaterhouseCoopers d.o.o. Podgorica

Samuel Levy Sal & Caldeira, Advogados & Consultores, Lda.

Enisa Tutovic IKRP Rokas & Partners - Radinovic Law Firm

Emerson Lopes Sal & Caldeira, Advogados & Consultores, Lda.

Morocco

Marla Mandlate Sal & Caldeira, Consultores Advogados, Lda.

Khaled Battash AGIP Morocco

Celia Meneses Deloitte & Touche

Hind Bellchami LPA

Júlio Mutisse FBLP Associados, Advogados Lda

Richard D. Cantin Juristructures LLP

Lara Narcy H. Gamito, Couto, Gonçalves Pereira, Castelo Branco & Associados

Taoufik Chakroun LPA Lucas Cienplinsky LPA Marie Danis August & Debouzy Law

Luisa Neves H. Gamito, Couto, Gonçalves Pereira, Castelo Branco & Associados

firm

Aude-Laurene Dourdain CMS Bureau Francis Lefebvre Morocco

Taciana Peão Lopes MGA - Advogados e Consultores, Lda

Meriem El Hafre LPA

Tania Resende F&L

Alain Gauvin Lefèvre Pelletier &

Malaika Ribeiro PwC Mozambique

associés,

Maroc

Amin Hajji Hajji & Associés

Kamal Nasrollah August & Debouzy Law

firm

Favio Batres Alvarado & Asociados

firm

Benjamin Siino August & Debouzy Law

Javier Chamorro PRONicaragua

firm

Gloria María de Alvarado Alvarado & Asociados Bertha de Rizo Arias & Muñoz, Nicaragua Luz Marina Espinoza Alvarado & Asociados

Yussuf Amuji PwC Mozambique

Sonia Garcia LexinCorp

Karina Arouca PwC Mozambique Josina Correia MGA - Advogados Consultores, Lda

Mario Gutiérrez ACZALAW e

Pedro Couto H. Gamito, Couto, Gonçalves Pereira, Castelo Branco & Associados Antonio de Vasconselos Porto Vasconcelos Porto & Associados Rita Furtado MGA - Advogados Consultores, Lda.

Julio Garrido-Mirapeix KPMG Soraia Issufo Sal & Caldeira, Advogados & Consultores, Lda. Rafique Jusob CPI - Centro de Promoção Investimentos

180

Bertha Arguello de Rizo Arias & Muñoz, Nicaragua

Laetita Saulais August & Debouzy Law

Benjamim Alfredo Dr. Benjamim Alfredo

Gerardo Hernandez Consortium Taboada

Okey Ejibe KPMG Professional Services

Salvadora Vado Carrión, Somarriba & Asociados

Theophilus Emuwa Aelex, Legal practitioners & Arbitrators

Gustavo-Adolfo Vargas Arias & Muñoz, Nicaragua Diana Zelaya Garcia & Bodan Abogados Notarios

Asociados

Rodrigo Ibarra Rodney Arias & Muñoz, Nicaragua Emiliano Jarquin Jarquin - Garcia Yali Molina Palacios Molina y Asociados

Saud Alvi Vellani & Vellani Mohammad Anwer Haidermota & Co. Rai Muhammad Saleh Azam Azam & Rai (Advocates & Legal Consultants)

Desmond Guabadia The Law Union

Muhammad Asif Bhatti Azam & Rai (Advocates & Legal Consultants)

Adeoye Adefulu

Tina Ikeneku Perchstone &Graeys

Sereena S. Chaudhry Haidermota & Co.

Omolola Ikwuagwu George Ikoli & Okagbue

Abdulhusein Haidermota Haidermota & Co.

Asamah Kadiri Jackson, Etti &Edu

Kazim Hasan Haidermota & Co.

Bunmi Malik Babalakin & Co

Fehem Hashmi Vellani & Vellani

Clara Mbachu Kenna & Associates

Ruqia Ismail Azam & Rai (Advocates & Legal Consultants)

Gbite Adeniji Aelex, Legal practitioners & Arbitrators Sola Adepetun Adepetun, Caxton-Martins, Agbor & Segun

Chuka Francis Agbu Babalakin & Co. Ken Aitken PricewaterhouseCoopers

Abimbola Nibson-Niboro Babalakin & Co. Ike Nwakwuo Kenna & Associates Vivian Nwumeh Giwa-Osagie & Co.

Mayhar Kazi Rizvi, Isa, Afridi & Angell Waleed Khalid Cornelius, Lane

and

Mufti

Aamir Khan AGIP

Kunle Ajagbe Perchstone & Graeys

Oladipo Odujinrin Odujinrin & Adefulu Barristers, Solicitors & Notaries Public

Konyinsola Ajayi Olaniwun Ajayi LP

Alayo Ogunbiyi Abdulai, Taiwo & Co

Ayesha Malik Rizvi, Isa, Afridi & Angell

Dafe Akpeneye PricewaterhouseCoopers

Ayokunle Ogundipe Perchstone & Graeys

Ahsan Zahir Rizvi Rizvi, Isa, Afridi & Angell

Asiyah Alao Banwo & Ighodalo

Joseph Ogunu Giwa-Osagie & Co.

Tiyan Alile La Verite Legal Practitioner

Gabriel Ojegbile PricewaterhouseCoopers

Aftab Salahuddin Ernst & Young Pakistan (Ford Rhodes Sidat Hyder & Co)

Taiwo Aliu George Ikoli & Okagbue

Sam Okagbue George Ikoli & Okagbue

Ola Alokolaro Advocaat Barristers & Solicitors

C. Nonyelum Okeke Ajumogobia & Okeke

Peter Alonge Giwa-Osagie & Co.

Esohe Okhomina Abdulai, Taiwo & Co

Chisa Anyanwu Banwo & Ighodalo

Johnpaul Okwoli Kenna & Associates

Taye Awofiranye Giwa-Osagie & Co.

Bukola Olabiyi Odujinrin & Adefulu Barristers, Solicitors & Notaries Public

Adetola Bakare Kenna & Associates Seyi Bickersteth KPMG Professional Services

Peter Crabb Nnenna Ejekam Associates

José Bernard Pallais Arias & Muñoz, Nicaragua

Sola Dosunmu Adepetun, Caxton-Martins, Agbor & Segun

Ernesto Rizo Nunez Rizo Zambrano Abogados

Nadeem Ahmad Orr, Dignam & Co.

Olaitan Adedeji KPMG Professional Services

Roberto Montes Doña Arias & Muñoz, Nicaragua

Donald Ramírez Carrión, Somarriba & Asociados

Bosede Giwa-Osagie Giwa-Osagie & Co.

Maudood Ahmad Orr, Dignam & Co.

Osayaba Giwa-Osagie Giwa-Osagie & Co.

Afolabi Caxton-Martins Adepetun, Caxton-Martins, Agbor & Segun

Investing Across Borders 2010

Pakistan

Nigeria

Haroldo Montealegre Arias & Muñoz, Nicaragua

Erwin Rodriguez ACZALAW

Abimbola Fowler-Ekar Jackson, Etti &Edu

Boma Adukeh George Ikoli & Okagbue

Humberto Carrión Carrión, Somarriba & Asociados

Mozambique

Edgard Torres Arias & Muñoz, Nicaragua

Oyenike Adewale The Law Union

Minerva Bellorin ACZALAW

Nesrine Roudane NERO Boutique Law Firm

Nnenna Ejekam Nnenna Ejekam Associates

Taiwo Adeshina Jackson, Etti &Edu

Nicaragua

Wilfried Le Bihan CMS Bureau Francis Lefebvre Morocco

Chone Justino Ernst & Young

Jose Taboada Taboada y Asociados Abogados

Ajibola Olomola KPMG Professional Services Olatorera Oloyede Adepetun, Caxton-Martins, Agbor & Segun Jennifer Eghosasere Omozuwa Perchstone & Graeys Chioma Onugu Kenna & Associates Donald Orji Jackson, Etti &Edu

Adeniyi Duale Jackson, Etti &Edu

Nestor Orji Nnenna Ejekam Associates

Koye Edu Jackson, Etti &Edu

Adekunle Soyibo Jackson, Etti &Edu

Amber Lakhani Rizvi, Isa, Afridi & Angell

Munawar Salam Cornelius, Lane and Mufti Ebrahim Sidat Ernst & Young Pakistan (Ford Rhodes Sidat Hyder & Co) Sanaya Vachha Vellani & Vellani Ali Akber Vasi Haidermota & Co. Badaruddin Vellani Vellani & Vellani

Papua New Guinea Antonio Bernabe Deloitte David A. Conn Port Moresby Chamber Commerce & Industry

Rio Fiocco Posman Kua Aisi Ernie Gangloff Deloitte Viola Geroro Gadens Lawyers Lucy Igo Gadens Lawyers Ambeng Kandakasi Supreme and National Courts Justice of Papua New Guinea

Laurie Needham LJ Hooker

Martín Zecenarro Grellaud y Luque Abogados, a firm member of KPMG International

Steve Patrick Gadens Lawyers

Mario Zuñiga Echecopar

Peru Oscar Arrus Estudio Rubio, Leguía, Normand & Asociados Alfredo Bullard Bullard, Falla & Ezcurra Abogados

Philippines Laurence Arroyo Quisumbing Torres member firm of Baker & McKenzie International Marigel B. Baniqued Puyat Jacinto & Santos Law Offices

Antonio Castillo ProInversion

Ina Dominguez-Palma Quisumbing Torres member firm of Baker & McKenzie International

Caroline de Trazegnies Bullard, Falla & Ezcurra Abogados Luis Marcelo De-Bernardis Miranda & Amado, Abogados

Carlos Dante Gargarita Puyat Jacinto & Santos Law Offices

Hugo Escobar KPMG Grellaud y Luque Abogados, a firm member KPMG International

Jaime Renato Gatmaytan Caguioa & Gatmaytan, Attorneys-at-Law

Marcial Garcia Ernst & Young

Jocelyn Gregorio-Reyes Quisumbing Torres member firm of Baker & McKenzie International

María Viviana García Tuesta Delmar Ugarte Abogados Sociedad Civil de Responsabilidad Limitada

Anthony Mark A. Gutierrez Caguioa & Gatmaytan, Attorneys-at-Law

Jorge Garguvervich Estudio Luis Echecopar Garcia Luis Gastañeta García Sayán Abogados Guillermo Grellaud Grellaud y Luque Abogados, a firm member of KPMG International Diego Harman Estudio Rubio, Leguía, Normand & Asociados Bruno Marchese Estudio Rubio, Leguía, Normand & Asociados Carlos Martínez Estudio Rubio, Leguia, Normand & Asociados Jorge Muniz Muniz, Ramirez, Perez-Taiman & Luna-Victoria Jose Antonio Payet Payet Rey Cauvi Daniel Reinoso Echecopar Luis Carlos Rodrigo Mazure Rodrigo Elias y Medrano, Abogados Diego Sanchez PricewaterhouseCoopers Luis Tavara Delmar Ugarte Abogados Sociedad Civil de Responsabilidad Limitada Teresa Tokushima Grellaud y Luque Abogados, a firm member of KPMG International Alfonso Tola García Sayán Abogados Maricarmen Tovar Estudio Echecopar Attorneys at Law Agustin Yrigoyen García Sayán Abogados

Regina Jacinto-Barrientos Puyat Jacinto & Santos Law Offices Daphne Jereza Picazo Buyco Tan Fider & Santos Law Offices Roberto Manabat KPMG - Manabat & Sanagustin & Co. Barbara Anne C. Migallos Migallos and Luna Law Offices Ella Katrina Mitra Angara Abello Concepcion Regala & Cruz Law Office

Joseph Valera, Jr Picazo Buyco Tan Fider & Santos Law Offices Melissa Angela Velarde Angara Abello Concepcion Regala & Cruz Law Office Anthea Villaruel Platon Martinez Flores San Pedro and Leano Law office Ben Dominic Yap Caguioa & Gatmaytan, Attorneys-at-Law

Poland ´ ski Bird & Bird Maciej Gawron sp.k. Michał Barłowski Wardynski & Partners

law firm

Torsten Bogen Schönherr Pietrzak Siekierzynski Bogen Sp. k. Michal Drwal Clifford Chance, Janicka, Namiotkiewicz, D bowski i wspólnicy sp.k. Justyna Dubielak Garrigues Ilona Fedurek White & Case, W. Daniłowicz, W. Jurcewicz i Wspólnicy Kancelaria Prawna Sp.k. Marta Frackowiak DLA Piper Wiater sp. k. Maciej Gawron´ ski ´ ski Bird & Bird Maciej Gawron sp.k. Krzysztof Hajdamowicz Clifford Chance, Janicka, Namiotkiewicz, D bowski i wspólnicy sp.k. Agata Jurek-Zbrojska Garrigues

Anya M. Palileo Puyat Jacinto & Santos Law Offices Norma Margarita Patacsil Caguioa & Gatmaytan, Attorneys-at-Law

Tomasz Ludwik Krawczyk Drzewiecki, Tomaszek & Partners Law Firm

Ma. Carmela Peralta KPMG - Manabat & Sanagustin & Co.

Joanna Kwas´ny White & Case, W. Daniłowicz, W. Jurcewicz i Wspólnicy Kancelaria Prawna Sp.k.

Carlos Platon Platon Martinez Flores San Pedro and Leano Law office April Raimundo Quisumbing Torres member firm of Baker & McKenzie International Teodoro Regala Angara Abello Concepcion Regala & Cruz Law Office Elaine Patricia Reyes Angara Abello Concepcion Regala & Cruz Law Office Roy Enrico Santos Puyat Jacinto & Santos Law Offices Portia Valencia Platon Martinez Flores San Pedro and Leano Law office

Terry A. Selzer Stampe, Haume & Hasselriis Agnieszka Stenzel Wardynski & Partners

law firm

Alina Szarlak White & Case, W. Daniłowicz, W. Jurcewicz i Wspólnicy Kancelaria Prawna Sp.k. Pawel Szmurlo Nikiel Zacharzewski Law Office, Krakow, Poland Wojciech Woloszyk IURIDICO Doradztwo Prawne i Tlumaczenia (Legal Consultancy & Translations) Andrzej Zacharzewski Nikiel Zacharzewski Law Office, Krakow, Poland Nikiel Zacharzewski Nikiel Zacharzewski Law Office, Krakow, Poland

Romania

Katarzyna Kahl White & Case, W. Daniłowicz, W. Jurcewicz i Wspólnicy Kancelaria Prawna Sp.k.

Antonio Picazo Picazo Buyco Tan Fider & Santos Law Offices

Łukasz Rozdeiczer Clifford Chance, Janicka, Namiotkiewicz, D bowski i wspólnicy sp.k.

Krzysztof Kycia DLA Piper Wiater

sp. k.

Piotr Olkowski DLA Piper Wiater

sp. k.

Tomasz Opalin´ ski Garrigues Adrian Pawelec White & Case, W. Daniłowicz, W. Jurcewicz i Wspólnicy Kancelaria Prawna Sp.k.

Magdalena Albu J & A Garrigues SLP - Permanent Establishment Cristina Emilia Alexe Popovici Nitu & Asociatii Nicoleta Almaj-Murariu J & A Garrigues SLP - Permanent Establishment

Claudia Hutina Drakopoulos Law Firm Ana Maria Ionescu Bulboaca & Asociatii SCA Iurea Isabela Bulboaca & Asociatii SCA Isabela Iurea Bulboaca & Asociatii SCA Silvana Ivan t¸uca Zbârcea & Asocia¸t ii Cristina Alina Lapuste KPMG Romania S.R.L Alexandru Lefter Pachiu & Associates Law Firm Ramona Lie Pachiu & Associates Law Firm Iustina Lutan Romanian Agency Investment

for

Foreign

Alexandra Malea Bulboaca & Asociatii SCA Cristian Mares J & A Garrigues SLP - Permanent Establishment Mihai Mares J & A Garrigues SLP - Permanent Establishment Cristina Metea t¸uca Zbârcea & Asocia¸t ii Alexandru Mocanescu Bulboaca & Asociatii SCA

Valentin Berea Bulboaca & Asociatii SCA

Magda Munteanu Pachiu & Associates Law Firm

Oana Caminof KPMG Romania S.R.L

Flaviu Nanu White & Case, Shollenbarger SCA

Georgiana-Cosmina Canache KPMG Romania S.R.L Dan Ciupala CMS Cameron McKenna SCA Voichita Craciun Pachiu & Associates Law Firm Valentin Creata Popovici Nitu & Asociatii

Adrian Neagu Voicu & Filipescu Attorneys at Law Daniela Nemoianu KPMG Romania S.R.L Daniela Maria Luiza Nitu KPMG Romania S.R.L

Mihaela Cucurezeanu Bulboaca & Asociatii SCA

Delia Pachiu White & Case, Shollenbarger SCA

Raluca Dirjan SCA Schönherr

Marius Petroiu CMS Cameron McKenna SCA

si asociatii

Arina Dobrescu t¸uca Zbârcea & Asocia¸t ii ˇ ghici Horia Dr a CMS Cameron McKenna SCA Marina Dranga Drakopoulos Law Firm Gunay Duagi KPMG Romania S.R.L Andrei Dumitrache Pachiu & Associates Law Firm

Sylwester Pieckowski Chadbourne & Parke LLP, Polish Arbitration Association - President

Cristian Eftimie White & Case, Shollenbarger SCA

Carlos Rapallo Garrigues

Doru Epure White & Case, Shollenbarger SCA

Mateusz Rogozin´ ski Drzewiecki, Tomaszek & Partners Law Firm

Laurentiu Gorun Drakopoulos Law Firm

Marta Popa Voicu & Filipescu Attorneys at Law Horea Popescu CMS Cameron McKenna SCA Matei Purice t¸uca Zbârcea & Asocia¸t ii Alexandra Radu CMS Cameron McKenna SCA Alexandra Rimbu J & A Garrigues SLP - Permanent Establishment Adrian Roseti Drakopoulos Law

firm

Ana-Maria Satmar SCA Schönherr si

asociatii

Cristian Gavrila Voicu & Filipescu Attorneys at Law

Lidia Savi - Nims Voicu & Filipescu Attorneys at Law

Alina Ghihanis J & A Garrigues SLP - Permanent Establishment

Cosmin Stavaru Bulboaca & Asociatii SCA

Contributors

181

Bogdan C. Stoica Popovici Nitu & Asociatii

Natalia Makarova White & Case LLC

Najeeb Al Maabreh Al Tamimi & Company

Daouda Niang Deloitte SENEGAL

Gordana Rajkovic Karanovic & Nikolic Law Office

Iulia Toth Bulboaca & Asociatii SCA

Katerina Manova Allen & Overy, Moscow Office

Sylvain Sankale 2S Consulting

Dusan Rakitic Specht Rechtsanwalt

Raluca Vasilache t¸uca Zbârcea & Asocia¸t ii

Myles Mantle Denton Wilde Sapte (CIS) Ltd.

Mohammad AlAmmar King & Spalding LLP in Association with the Law Office of Mohammad AlAmmar

Codou Sow-Seck SCP GENI,SANKALE & KEBE

Milan Samardžic´ Specht Rechtsanwalt

Russian Federation

Tanya Mayrhofer White & Case LLC

Ndeye Khoudia Tounkara Cabinet Maître Mayacine Tounkara et Associés, Avocats à la Cour

Milka Simic Law Office “Dražic´ , Beatovic´ & Partners”

Marat Agabalyan Herbert Smith CIS LLP

Olga Mazur Mannheimer Swartling Ryssland Advokataktiebolag

Francesca Albert Herbert Smith CIS LLP

Olesya Petrol’ Macleod Dixon E.L.P.

Elena Antonova White & Case LLC Natalya Antsiperova Allen & Overy, Moscow Office Semen Anufriev Beiten Burkhardt Rechtsanwaltsgesellschaft

Vladlena Prozorova Macleod Dixon E.L.P. mbH

Victoria Arutyunyan White & Case LLC

Sergey Shorin Latham & Watkins LLP

Timur Askhadullin White & Case LLC Timur Bayramov Allen & Overy, Moscow Office

Elena Stepanenko Baker Botts

Eugenia Bektasheva Allen & Overy, Moscow Office

Sergey Tsybdenov Allen & Overy, Moscow Office

Natalya Blinova Liniya Prava

Nina Vilkova Russian Academy Trade

Yulia Borisova Latham & Watkins LLP Oleg Bychkov Allen & Overy, Moscow Office Alexey Chertov Clifford Chance CIS Ltd. Andrey Chuyko Latham & Watkins LLP Michael Cuthbert Clifford Chance CIS Ltd. Kyle Davis Allen & Overy, Moscow Office Liubov Erigo Mannheimer Swartling Ryssland Advokataktiebolag Olga Fonotova Macleod Dixon E.L.P. Vladislav Ganzhala Law Firm Liniya Prava Maria Issaeva White & Case LLC Vladimir Khvalei Baker & McKenzie Ivan Kozhev Allen & Overy, Moscow Office Alyona Kozyreva Macleod Dixon E.L.P. Konstantin Kroll Allen & Overy, Moscow Office Maxim Kulkov Goltsblat BLP

Turki Althunayan Law Office of Mohammed A. AlSheikh in association with White & Case LLP Abrahim Bakhurji Law Office of Mohammed A. Al-Sheikh in association with White & Case LLP Salaheddine Dandan Al Sulaim & Al Awaji International Law Firm

Ekaterina Smirnova Moscow region Collegium attorneys, branch No 29

Anne Bodley Clifford Chance CIS Ltd.

Foreign

Steve Wardlaw Baker Botts

Rwanda Claudine Gasarabwe Claudine Gasarabwe Patrick Gashagaza Deloitte & Touche Rwanda s.a.r.l. Herbert Gatsinzi Ernst & Young Alvin Mihigo R&Partners Law Firm Calvin Mitali Equity Juris Chambers Richard Mugisha Trust Law Chambers Faroh Ndahiro Cabinet d’avocats Martin Nkurunziza Deloitte & Touche Rwanda s.a.r.l.

Farhan Farouk Deloitte & Touche Bakr Abulkhair & Co. Yusuf Giansiracusa Al Sulaim & Al Awaji International Law Firm Alan Hall Al Tamimi & Company Chris Langdon Law Office of Mohammed A. Al-Sheikh in association with White & Case LLP

Marko Brezancic Andric Law Office Branko Bukvic´ Law Office Zivkovic´ Samardzic´ Dejan Certic Law Office Serbia Ilija Dražic´ Law Office “Dražic´ , Beatovic´ & Partners”

Branislav Zivkovic Law office Zivkovic Samardzic Milos Zivkovic Law Office Zivkovic Samardzic

Sierra Leone Maurice Garber Maurice Garber & Associates Len Gordon-Harris Fitz-Graham & Associates Osman Jalloh Yada Williams & Associates Simitie Lavaly Yada Williams & Associates Susan Sisay Sisay and Associate Yada Hashim Williams Yada Williams & Associates

Singapore Joey Arcilla Colin Ng & Partners LLP

Patricia Gannon Karanovic & Nikolic Law Office

Tanheang Bok Hoay Donaldson & Burkinshaw

El Gasseer Mothanna Al Tamimi & Company

Ana Godjevac Attorneys at Law Spasic & Partners

Lawrence Geok Seng Boo The Arbitration Chambers

Muhammad Saloojee KPMG

Ksenija Golubovic´ Filipovic´ Živkovic´ & Samardžic´ Law office

Asim Sheikh Ernst & Young

Radovan Grbovic´ Specht Rechtsanwalt

Sumit Soni Law Office of Mohammed A. Al-Sheikh in association with White & Case LLP

Darko Jašarevic´ Law Office “Dražic´ , Beatovic´ & Partners”

MAher Melhem Talal Abu Ghazaleh Legal

Dragan Karanovic Karanovic & Nikolic Law Office Dimitrios Katsaros IKRP Rokas & Partners

Thiaba Camara Sy Deloitte SENEGAL

Tijana Kojovic Law Office Kojovic

Thierno Diallo Centre d’Arbitrage de Mediation et de Conciliation (Arbitration Center)

Tijana Lalic Law Office “Prica & Partners” Belgrade

Baïdy Dieng Ernst & Young

Ilya Kuznetsov Allen & Overy, Moscow Office

Naïm Al Chami TAG-Legal

Christiane Empain SCP GENI SANKALE & KEBE

Konstantin Litvinenko Macleod Dixon E.L.P.

Abdulaziz Al Fahad The Law Office of Abdulaziz H Fahad

Macodou Ndour Cabinet Maître Mayacine Tounkara et Associés, Avocats à la Cour

Investing Across Borders 2010

Zarko Borovcanin Jankovic, Popovic & Mitic Unlimited Partnership

Nikoleta Vucˇenovic´ Specht Rechtsanwalt

Jacquelynne Baey Rodyk & Davidson LLP

Saudi Arabia

Julia Lymar White & Case LLC

at law

Darko Spasic Attorneys at Law Spasic & Partners

Senka Gajin Karanovic & Nikolic Law Office

Glenn Lovell Al Tamimi & Company

Senegal

Frank Twagira Rwanda Development Board

Nenad Aleksic Aleksic Law Office

Bojana Babic Bojovic Dasic Kojovic Attorneys

Molly Rwigamba Private Sector Federation

Karim Tushabe Rwanda Development Board

Nikola Aksic Karanovic & Nikolic Law Office

Elsayed Elsayed Law Office of Mohammed A. Al-Sheikh in association with White & Case LLP

Mohammed Sulieman Talal Abu Ghazaleh Legal

Gurmit Santokh Ernst & Young

Serbia

Luka Andric Andric Law Office

Benjamin Ntaganira Kamanzi, Ntaganira & Associates: Corporate Lawyers

Richard Rwihandagaza R&Partners Law Firm

Mayacine Tounkara Cabinet Maître Mayacine Tounkara et Associés, Avocats à la Cour

Salah Deeb Al Tamimi & Company

Fallou Dieye APIX (Investment Promotion Agency)

Dmitry Kurochkin Herbert Smith CIS LLP

182

Maya Petrova Mannheimer Swartling Ryssland Advokataktiebolag

Fahad Bakheet AlMalki King & Spalding LLP in Association with the Law Office of Mohammad AlAmmar

Dejan Nikolic Karanovic & Nikolic Law Office Djordje I. Novcic Jankovic, Popovic & Mitic Unlimited Partnership Lidija Obrenovic Law Office Bojovic Dasic Kojovic Darija Ognjenovic Prica and Partners Dragan Pejcic Serbia Investment and Export Promotion Agency (SIEPA)

Marisol Caneja Colin Ng & Partners LLP Wai Mun Chan Colin Ng & Partners LLP David Chong Shook Lin & Bok LLP Ching Chou Rodyk & Davidson LLP Joseph Chun Shook Lin & Bok LLP Vinodh Coomaraswamy Shook Lin & Bok LLP Bill Jamieson Colin Ng & Partners LLP Joseph Lee Rodyk & Davidson LLP Kai Zee Liew Shook Lin & Bok LLP Jacqueline Loke Rodyk & Davidson LLP Huihua Loo Wong Tan & Molly Lim LLC Naresh Mahtani ATMD Bird & Bird LLP K. Shanti Mogan Shearn Delamore & Co. Dorothy Marie Ng WongPartnership LLP

Beng Hong Ong Wong Tan & Molly Lim LLC

Sonˇ a Pindešová Wolf Theiss, organizacˇná

zložka

Liviu Petrina Colin Ng & Partners LLP

Tána Šefˇcíková Wolf Theiss, organizacˇná

zložka

Sandra Seah ATMD Bird & Bird LLP

Milan Šiška Balcar Polanský Eversheds s.r.o.

Pradeep Singh Colin Ng & Partners LLP

Zuzana Sláviková Wolf Theiss, organizacˇná

zložka

Stephen Soh Colin Ng & Partners LLP

Marcela Slobodová Wolf Theiss, organizacˇná

zložka

Anthony Soh Colin Ng & Partners LLP

Hana Supeková Ružicˇka & partners, s.r.o.

Joy Tan WongPartnership LLP

Matúš Valkuˇcák Hillbridges, s.r.o.,

Lawrence Teh Rodyk & Davidson LLP

Branislav Vanˇco Balcar Polanský Eversheds s.r.o.

Angela Teo Bee Luang Donaldson & Burkinshaw

Ladislav Záhumenský Hillbridges, s.r.o., law

firm

Valerie Wu Peichan Donaldson & Burkinshaw

Michaela Zdichavská Hillbridges, s.r.o., law

firm

Vivien Yui WongPartnership LLP

Solomon Islands Derick Aihari Foreign Investment Division, Ministry of Commerce, Industry, Labour and Immigration

Slovak Republic Andrej Adamcik Hillbridges, s.r.o.,

law firm

Silvia Balášková Wolf Theiss, organizacˇná

zložka

Peter Bartosik B & S Legal s.r.o.

Lynette daWheya Foreign Investment Division, Ministry of Commerce, Industry, Labour and Immigration Francis Cecil Luza Trade Disputes Panel - Minsitry of Commerce, Industry & Employment

Zuzana Bartosovicova Hillbridges, s.r.o., law firm Martin Cabak Hillbridges, s.r.o.,

law firm

Ken Lyons Spatial Information Service PTY Ltd.

law firm

ˇ Elena cervenová White & Case s.r.o. Zoran Draškovicˇ White & Case s.r.o.

Wayne Morris Morris & Sojnocki Chartered Accountants

Juraj Fuska White & Case s.r.o.

Andrew Radclyffe Andre Radclyffe Sole Practitioner

Daniel Futej Futej & Partners s.r.o.

John Sullivan Sol-Law

Erika Galgóciová Wolf Theiss, organizacˇná

Greg Thompson Misi & Asoociates

zložka

Peter Hodal White & Case s.r.o.

South Africa

Michal Hulena Ružicˇka & partners, s.r.o.

Allison Alexander Edward Nathan Sonnenbergs Inc.

Martin Jureˇ cko White & Case s.r.o. Zuzana Kalnaiova Hillbridges, s.r.o., law Juraj Kopernický Hillbridges, s.r.o.,

Nick Alp Webber Wentzel Attorneys Charles Ancer Cliffe Dekker Hofmeyr Inc.

firm

law firm

Filip Krajˇcoviˇc Wolf Theiss, organizacˇná

zložka

Robert Appelbaum Edward Nathan Sonnenbergs Inc.

J D Herbert Edward Nathan Sonnenbergs Inc. Quintin Honey Cliffe Dekker Hofmeyr Inc Tasneem Hoosen Bell Dewar Inc Okkie Kellerman Edward Nathan Sonnenbergs Inc. Vera Kleynhans Edward Nathan Sonnenbergs Inc. Leza Kotze Edward Nathan Sonnenbergs Inc. Inc. Michael Kuper AFSA: The Arbitration Foundation Of Southern Africa Association

Alberto Fortún Cuatrecasas Gonçalves Pereira

Mohamed Adam Dr.Adam & Associates Gamal Eldin Alnougomi Khartoum Center for Commercial Arbitration (KCCA)

Suwar Idris Allied attorneys

Stuart McCafferty Webber Wentzel Attorneys

Victoria Llavero Gómez-Acebo & Pombo Abogados S.L.P.

Sifisile Ngwenya Bell Dewar Inc Rajen Ranchhoojee Dewey & LeBoeuf Samantha Saffy Bell Dewar Inc Craig Schafer Bell Dewar Inc Tania Siciliano Bell Dewar Inc Charles Smith Edward Nathan Sonnenbergs Inc. Andrew Staude Eversheds Tania Steenkamp Edward Nathan Sonnenbergs Inc. Isabel Terk AFSA: The Arbitration Foundation Of Southern Africa Association

Yolanda Lopez-Casero Bartolome & Briones SLP Julio Lujambio Perez-Llorca Javier Muñoz Méndez Perez-Llorca Sofia Perez Jausas Juan Antonio Pérez Rivarés Uría Menendez Nayra Prado Marrero Fernando Scornik Gerstein Spanish Lawyers & Solicitors Mónica Represa Cuatrecasas Gonçalves Pereira

Penelope Chenery Eversheds

Alvaro Benejam Bartolome & Briones SLP

Gretchen de Smit Edward Nathan Sonnenbergs Inc.

Antonio Bravo Eversheds Lupicinio Mercedes Caral Jausas

Susan Khalil Bureau of Business Investment Law

and

Osman Mekki House of Legal Consultancies & Services Fathi Mohamed Rajai Saleem House of Legal Consultancies & Services Amel Sharif Mahmoud Elsheikh Omer &Associates Advocates Akolda Tier University of Khartoum

Nasra Hassan Mkono & Co. Advocates

María Teresa Uzal Perez-Llorca

Helga Mad’arová Balcar Polanský Eversheds s.r.o.

and

Fernando Scornik Gerstein Fernando Scornik Gerstein Spanish Lawyers & Solicitors

Spain

Jaime Almenar Belenguer Uría Menéndez

law firm

Mohamed Khalil Bureau of Business Investment Law

Tanzania

Carlos Serrano Bartolome & Briones SLP

Silvia Alcoverro Cuatrecasas Gonçalves Pereira

firm

Diego Saavedra Gómez-Acebo & Pombo Abogados S.L.P.

Roger Wakefield Werksmans Inc

Almudena Arpón de Mendivil Gómez-Acebo & Pombo Abogados S.L.P.

Grant Edmundson Eversheds

Alfonso Fernández-Puebla Gómez-Acebo & Pombo Abogados S.L.P.

Omer Abu Sham House of Legal Consultancies & Services

Eduardo Gómez de la Cruz Gómez-Acebo & Pombo Abogados S.L.P.

Theo Buchler Edward Nathan Sonnenbergs Inc

Martina Pastierová Balcar Polanský Eversheds s.r.o.

Victoria Fernández-Armesto Hafner Perez-Llorca

Sudan

S MacKay-Davidson Edward Nathan Sonnenbergs Inc.

Nad’a Lovišková Balcar Polanský Eversheds s.r.o.

Michal Pališin White & Case s.r.o.

Pedro Fernández Cuatrecasas Gonçalves Pereira

John Wilson John Wilson Partners

Abdelazim hassan Allied attorneys law

Jorge Aranaz Cuatrecasas Gonçalves Pereira

zložka

Guillermina Ester Perez-Llorca

Shiranthi Perera Law Chambers of Lasantha Hettiarachchi

Beatriz García Gomez Perez-Llorca

Paul Lategan Edward Nathan Sonnenbergs Inc.

Jan Bouwan Bell Dewar Inc.

Jana Palˇcíková Wolf Theiss, organizacˇná

Covadonga del Pozo Cuatrecasas Gonçalves Pereira

Ibrahim Draig Khartoum Center for Commercial Arbitration (KCCA)

Jorge Angell L.C. Rodrigo Abogados

zložka

Rossana de la Cruz L.C. Rodrigo Abogados

Suresh Perera KPMG, Ford, Rhodes, Thornton & Company

Manuel Franco Cuatrecasas Gonçalves Pereira

Nthabiseng Baloyi Cliffe Dekker Hofmeyr Inc.

Lucia Lališová Wolf Theiss, organizacˇná

Charles Coward Uría Menéndez

Juan Viaño Gómez-Acebo & Pombo Abogados S.L.P.

Patrick Ache Mkono & Co. Advocates

Protase Ishengoma Ishengoma, Karume, Masha & Magai (Advocates) - IMMMA Advocates Daniel Krips Mkono & Co. Advocates Anna Lyimo Tanzania Investment Centre (TIC)

José María Viñals Camallonga Eversheds Lupicinio

Lotus Menezed Mkono & Co. Advocates

Miguel Virgós Uría Menéndez

Nimrod Mkono Mkono & Co. Advocates

Sri Lanka

Hans Msemo Tanzania Investment Centre (TIC)

Sarah Afker KPMG, Ford, Rhodes, Thornton & Company

Edward Mwachinga Deloitte Consulting Limited

Piyum Dassanayake Law Chambers of Lasantha Hettiarachchi Lasantha Hettiarachchi Law Chambers of Lasantha Hettiarachchi

Karishma Raj Asyla Attorneys Rehema Saria Mkono & Co. Advocates Daniel Welwel Asyla Attorneys

Contributors

183

Thailand

Turkey

Bundit Atthakor DFDL Mekong (Thailand) Co., Ltd.

Özgür Tayga Ak Curtis, Mallet - Prevost, Colt & Mosle LLP

Timothy Breier Baker & McKenzie Ltd., Bangkok

Mine Alten YükselKarkınKüçük Law Firm

Niraporn Chaiyaraj DFDL Mekong (Thailand) Co., Ltd.

Ozge Altinok Lokmanhekim ELIG Attorneys-At-Law

Natalia Sorokina bnt & Partners

David Vaughan Wragge & Co LLP

Tomasz Stasiak Clifford Chance LLC

David Williams Allen & Overy LLP

Yelena Stasyk Gide Loyrette Nouel

Jonathan Wood Clyde & Co

Serhii Sviriba Magisters

United States

Denys Sytnyk Schönherr Ukraine LLC

Guillermo Aguilar-Alvarez Weil Gotshal & Manges

Illya Tkachuk Gide Loyrette Nouel

Oliver Armas Chadbourne & Parke LLP

Gleb Tsvyetkov Law Firm AS Consulting, LLC

Jose Astigarraga Astigarraga Davis

Andriy Tsvyetkov Law Firm AS Consulting, LLC

William Baker Alston & Bird LLP

Ukraine

Olexander Tytov Schönherr Ukraine LLC

Donald Batterson Jenner & Block LLP

Roman Badalis bnt & Partners

Antonina Yaholnyk Baker & McKenzie - CIS, Limited

Neal Beaton Holland & Knight LLP

Anna Bondar Peterka & Partners

Ilona Zekely Schönherr Ukraine LLC

Peter Danis Peterka & Partners

Mitchell Berg Paul, Weiss, Rifkind, Wharton & Garrison LLP

United Kingdom

Sergii Gan Gide Loyrette Nouel

Vicki Abberton Clyde & Co

Ted Castell Chadbourne & Parke LLP

Murat Hardalaç Enerji ve Tabii Kaynaklar Bakanlıg ˇı

Olga Gavrylyuk Baker & McKenzie - CIS, Limited

Matthew Cartwright Jones Day

Serkan Ictem ELIG Attorneys-At-Law

Olga Glukhovska Magisters

Andrew Chen Jones Day

Sebnem Isik Mehmet Gün & Partners

Andrii Grebonkin Clifford Chance LLC

Lee Coffey Jones Day

Ozan Karaduman Mehmet Gün & Partners

Karl Hepp de Sevelinges Gide Loyrette Nouel

John Cooper Wragge & Co LLP

Murat Karkın YükselKarkınKüçük Law Firm

Victoria Ischenko Baker & McKenzie - CIS, Limited

Ian Cox Herbert Smith LLP

Muharrem Küçük YükselKarkınKüçük Law Firm

Yana Kartseva Peterka & Partners

Andrea Dahlberg Allen & Overy LLP

Ozlem Ozgur Meric Talal Abu-Ghazaleh Organization

Inna Kilovata Gide Loyrette Nouel

Jamie Drinnan Wragge & Co LLP

Seteney Oner YükselKarkınKüçük Law Firm

Nataliya Klyuk Clifford Chance LLC

Stina Ekblad Allen & Overy LLP

Ay egül Önol YükselKarkınKüçük Law Firm

Olexiy Kostromov Clifford Chance LLC

Duncan Gillespie DLA Piper UK LLP

Naz Tamer Mehmet Gün & Partners

Oleg Krykavskiy Gide Loyrette Nouel

Clare Grayston Nabarro LLP

Selecen Yalcin Mehmet Gün & Partners

Anna Makedonska Baker & McKenzie - CIS, Limited

Michael Hales Nabarro LLP

Maksym Makhynia Law and Patent Offices Grischenko & Partners

Jane McMenemy Herbert Smith LLP

Athitaya Chanthasirichot Lorenz & Partners Co., Ltd.

Akın Volkan Arıkan Curtis, Mallet - Prevost, Colt & Mosle LLP

Pinprapus Chartikavanich McEvily & Collins Law Offices

Canan Arslan ELIG Attorneys-At-Law

Daniel Chernov DFDL Mekong (Thailand) Co., Ltd.

Birtürk Aydın Esin Law Firm

Fabian Doppler McEvily & Collins Law Offices Somboon Kitiyansub Norton Rose (Thailand) Limited Ampika Kumar Baker & McKenzie Ltd., Bangkok Till Morstadt Lorenz & Partners Co., Ltd. Stefan Riedl Lorenz & Partners Co., Ltd Walanchathas Sanguanwong DFDL Mekong (Thailand) Co., Ltd. Nipaporn Supha-utchaichan DFDL Mekong (Thailand) Co., Ltd. William T. Nophakoon Baker & McKenzie Ltd., Bangkok Herbert Smith (Thailand) Ltd.

Tunisia Moufida Abbes Zaanouni law firm Sami Aouani ILC Meriem Belajouza Cabinet Maître Donia Hedda Ellouze Hichem Ben Hmida Ernst & Young Amin Ben Lakhal Ben Lakhal International Consulting

Arzu Basmac Mehmet Gün & Partners Nazim Bükülmer TCCD Turkish State Railways Özge Dumlupınar Undersecretariat of Treasury ´Ismail Gökhan Esin Esin Law Firm ehnaz Güngör Curtis, Mallet - Prevost, Colt & Mosle LLP

Maryem Blidi AGIP

´Ibrahim Yamakogˇ lu YükselKarkınKüçük Law Firm

Imed Chorfi Ernst & Young

Begüm Yavuzdogˇ an Mehmet Gün & Partners

Hichem Dammak Dr.Hichem Dammak Law Office

Cüneyt Yüksel YükselKarkınKüçük Law Firm

Slim Gargouri ATA

Energy Market Regulatory Authority of Turkey

Karim Hammami Ben Lakhal International Consulting

Uganda

Donia Hedda Ellouze Cabinet Maître Donia Hedda Ellouze Mohamed Ridha Jenayah Fehmi Laourin Ernst & Young Mohamed Zaanouni Zaanouni law firm

Sylla Aissata A.F. Mpanga, Adovcates Enoch Barata Birungyi, Barata & Associates Cephas Birungyi Birungyi, Barata &

associates

David Ceng P’Okot Auma Muganwa Nanteza & Co Advocates Oscar KIhika Byenkya, Kihika & Co Advocates

184

Investing Across Borders 2010

Robert Kirunda JN Kirkland and Associates, Corporate Lawyers & Attorneys David F.K. Mpanga A.F. Mpanga, Adovcates Jackie Naluyima Katende JN Kirkland and Associates, Corporate Lawyers & Attorneys Diana Ninsiima Kibuuka MMAKS Advocates Deogratius Odokel Opolot Odokel Opolot& Company Advocates,Solicitors & Legal Consultants Charles Semakula Muganwa Muganwa Nanteza & Co Advocates

Oleg Matiusha Baker & McKenzie - CIS, Limited Yuliya Mokhnatova Clifford Chance LLC Andriy Nikiforov Baker & McKenzie - CIS, Limited Dmitriy Orendarets Clifford Chance LLC Alexander Poels Peterka & Partners Svitlana Romanova Baker & McKenzie - CIS, Limited Gennadii Roschepii Clifford Chance LLC Dmitry Shemelin Grischenko & Partners Darya Shypko Gide Loyrette Nouel

James McWilliam Allen & Overy LLP Eric Moffat Allen & Overy LLP Christopher Papanicolaou Jones Day Rhodri Pazzi-Axworthy Nabarro LLP David Pettingale Wragge & Co LLP Andrew Platt Wragge & Co LLP William Saunders Jones Day Sean Scanlon DLA Piper UK LLP Carol Shutkever Herbert Smith LLP

Ness Cohen Clifford Chance US LLP Thomas E. Crocker Alston & Bird LLP Stephanie Denkowicz Alston & Bird LLP Mary Devine Paul, Weiss, Rifkind, Wharton & Garrison LLP Samuel Feder Jenner & Block LLP Joseph Forte Alston & Bird LLP Sergio Galvis Sullivan & Cromwell LLP Jessica Garascia Jenner & Block LLP Jonathan Greenblatt Shearman & Sterling LLP Robert Harmon Jr. Paul, Weiss, Rifkind, Wharton & Garrison LLP Brian Hoffmann Clifford Chance US LLP W Hunter Holliday Alston & Bird LLP Donald Horvath Jenner & Block LLP James Hosking Clifford Chance US LLP William H. Hughes Jr Alston & Bird LLP Carter Klein Jenner & Block LLP Alan Klein Simpson Thacher & Bartlett LLP George Kleinfeld Clifford Chance US LLP Daniel C. Kolb Ropes & Gray LLP Ruth Lansner Holland & Knight LLP David Lewis DLA Piper LLP (US)

Christopher L. Mann Sullivan & Cromwell LLP Marisa Marinelli Holland & Knight LLP Dawn Marie Matlock Alston & Bird LLP Gerald L Mize Alston & Bird LLP Robert D Mowrey Alston & Bird LLP Trevor W Nagel Alston & Bird LLP

David Wolber Paul, Weiss, Rifkind, Wharton & Garrison LLP

Alvaro Hardy D’Empaire Reyna Abogados

Dang Trong Hieu Vision and Associates Legal

Han Tran Ngoc Russin & Vecchi

Alston & Bird LLP

Fulvio Italiani D’Empaire Reyna Abogados

Andrew Hilton Allens Arthur Robinson

Kien Trinh Tilleke & Gibbins Consultants Ltd.

Venezuela, RB

José Tadeo Martínez Inter-American Development Bank

Long Ho Vinh Freshfields Bruckhaus Deringer LLP

Luong Ngoc Trinh Vietnam International Law Firm

Jaime Martínez Rodner, Martínez & Asociados

John King Tilleke & Gibbins Consultants Ltd.

My Ly Truong Phuoc & Partners Law Firm

Pedro Planchart Araque, Reyna, Sosa, Viso & Pittier

Quynh Anh Lam Freshfields Bruckhaus Deringer LLP

Duyen Vo Ha Vietnam International Law Firm

Milton Lawson Freshfields Bruckhaus Deringer LLP

Trung Vu Le Freshfields Bruckhaus Deringer LLP

Chung Ba Thanh Le Allens Arthur Robinson

Yemen, Rep.

Luisa Acedo de Lepervanche Mendoza, Palacios, Acedo, Borjas, Páez Pumar & Cía. Luis Araque Araque, Reyna, Sosa, Viso & Pittier

Charles O’Neill Chadbourne & Parke LLP

Tomás Arias Raffalli de Lemos Halvorssen Ortega y Ortiz

Lawrence Plotkin Chadbourne & Parke LLP

Lorena Avila López Rodner, Martínez & Asociados

Gilbert Porter Haynes and Boone, LLP

Dailyng Ayestarán Mendoza, Palacios, Acedo, Borjas, Páez Pumar & Cía.

David W. Rivkin Debevoise & Plimpton LLP Marianne Roach Casserly Alston & Bird LLP Gabriel Rottman Simpson Thacher & Bartlett LLP Lawrence Schaner Jenner & Block LLP Marc J Scheinson Alston & Bird LLP Eileen M.G. Scofield Alston & Bird LLP Moses Silverman Paul, Weiss, Rifkind, Wharton & Garrison LLP Robert Smit Simpson Thacher & Bartlett LLP Chris Smith Shearman & Sterling LLP Dwight C. Smith, III Alston & Bird LLP Eliza Swann Shearman & Sterling LLP Christopher Taylor Clifford Chance US LLP Sebastian Tiller Simpson Thacher & Bartlett LLP John Toriello Holland & Knight LLP Kenneth G. Weigel Alston & Bird LLP Rick Werner Haynes and Boone, LLP

Ramon Azpurua Squire Sanders & Dempsey, S.C. Tatiana B. de Maekelt Valera, Maekelt y Asociados Law firm and Universidad Central de Venezuela.

Eduardo Porcarelli CONAPRI Melissa Puga CONAPRI Carolina Puppio Araque, Reyna, Sosa, Viso & Pittier James Otis Rodner Rodner, Martínez & Asociados Andrea Rondon Raffalli de Lemos Halvorssen Ortega y Ortiz Rafael Saggese Squire Sanders & Dempsey, S.C.

Andrés Carrasquero Universidad Catolica Andres Bello and Universidad Central de Venezuela / Escovar León Abogados

Eulalia Salas de Egoavil Rodner, Martínez & Asociados

Adolfo Castejon CONAPRI

Juan Suarez Escovar León Abogados S.C.

Juan Croes Universidad Catolica Andres Bello and Universidad Central de Venezuela / Escovar León Abogados

Ira Vergani D’Empaire Reyna Abogados

María Clara Curé Rodner, Martínez & Asociados

Hoan Bui Khuong Diem Frasers Law Company

Hector D´Armas CONAPRI

Vinh Dang Allens Arthur Robinson

Hernando Diaz-Candia Squire Sanders & Dempsey, S.C.

Xuan Hop Dang Allens Arthur Robinson

Ramón Escovar Universidad Catolica Andres Bello and Universidad Central de Venezuela / Escovar León Abogados

Nhu Thanh Dinh Thi Tilleke & Gibbins Consultants Ltd.

José Humberto Frias D’Empaire Reyna Abogados Alvaro Guerrero D’Empaire Reyna Abogados Andrés Halvorssen Raffalli de Lemos Halvorssen Ortega y Ortiz

Ana Carolina Serpa Araque, Reyna, Sosa, Viso & Pittier

Vietnam

Cong Do Thanh Russin & Vecchi Hoang Nam Dong Russin & Vecchi

Veera Maenpaa Allens Arthur Robinson Thi Phuong Anh Mai Allens Arthur Robinson Anh Ngoc Mai Luaviet - Advocates

and

Solicitors

Hamzah Al-Anesi Ibrahim Al-Basha General Investment Authority Khaled Al-Buraihi Law Office(KAB) Khaled Al-Buraihi for advocacy and Legal Service

Tung Ngo Vietnam International Law Firm

Ahmed Al-Hababi General Investment Authority

Thi Mai Loan Nguyen Allens Arthur Robinson

Ali Al-Hebshi Advocacy and Legal Consultations Office (ALCO)

Lang Nguyen Freshfields Bruckhaus Deringer LLP Phuoc Nguyen Phuoc & Partners Law Firm Chuong G.H. Nguyen Phuoc & Partners Law Firm Dinh Cuong Nguyen Russin & Vecchi Nam Nguyen Allens Arthur Robinson Vu Nguyen Quang Freshfields Bruckhaus Deringer LLP Tuan Pham Phuoc & Partners Law Firm Huong Pham Dinh Luaviet - Advocates

and

Solicitors

Thao Phung Thi Thanh Frasers Law Company Hoang Kim Thi Tran Tilleke & Gibbins Consultants Ltd. Cuong Tong Cong Russin & Vecchi

Mark Fraser Frasers Law Company

Van Hoai Tran Allens Arthur Robinson, Ho Chi Minh City Branch

Quang Ha Dang Russin & Vecchi

Hoang Tran Tilleke & Gibbins Consultants Ltd.

Abdulla Almutareb Tahseen Consulting Khaled Al-Rainee General Investment Authority Belquis Al-Shaibah General Investment Authority Laila Shihab Laila M. Shihab Saeed Sohbi S.H.Sohbi, Barrister-at-law

Zambia David Chakoleka Corpus Legal Practitioners Twaambo Kalenga-Chirwa MNB, Legal Practitioners Ngosa Mulenga-Simachela MNB, Legal Practitioners Josephine Mwale MNB, Legal Practitioners Kafula Mwiche Lawrence Sikutwa & Associates Limited Sashi Nchito MNB, Legal Practitioners Arthur Sike Corpus Legal Practitioners

Contributors

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Abbreviations and Glossary Abbreviations AAA

American Arbitration Association

KOTRA

Korea Trade-Investment Promotion Agency (Korea)

ADR

Alternative Dispute Resolution

LCIA

London Court of International Arbitration

AGCHO

Afghan Geodesy and Cartography Office (Afghanistan)

LGAF

Land Governance Assessment Framework

ANIP

National Agency for Private Investment (Angola)

LIS

Land Information System

APEC

Asia-Pacific Economic Cooperation

LLC

limited liability company

ASEAN

Association of Southeast Asian Nations

M&A

mergers and acquisitions

BEAC

Bank of Central African States

M&E

monitoring and evaluation

Doing Business

MIGA

Multilateral Investment Guarantee Agency

ECOWAS

Economic Community Of West African States

NGO

Nongovernmental Organization

EPZ

export processing zone

OCR

Office of Company Registration

EIU

Economist Intelligence Unit

OECD

Organisation for Economic Co-operation and Development

European Union

OHADA

FDI

foreign direct investment

Organisation for the Harmonization of Business Law in Africa

FIAS

FIAS, The Investment Climate Advisory Service

OPIC

Overseas Private Investment Corporation

FYR

Former Yugoslav Republic (Macedonia)

PLC

public limited company

GATS

General Agreement on Trade in Services

PPP

purchasing power parity

GCC

Gulf Cooperation Council

RADAR

GDP

gross domestic product

Registro e Rastreamento da AtuaĂ§ĂŁo dos Intervenientes Aduaneiros (Brazil)

GILD

Global Investment Locations Database

R&D

research and development

GIS

Geographic Information System

SAARC

South Asian Association for Regional Cooperation

GNI

gross national income

SAGIA

IAB

Investing Across Borders project

Saudi Arabian General Investment Authority (Saudi Arabia)

IBA

International Bar Association

SADC

Southern African Development Community

ICC

International Chamber of Commerce

SEZ

special economic zone

ICSID

International Centre for Settlement of Investment Disputes

SME

small and medium enterprise

TNC

transnational corporation

IEG

Independent Evaluation Group

UEMOA

Monetary Union of West Africa

IFC

International Finance Corporation

UNCITRAL

ILI

International Law Institute

United National Commission on International Trade Law

IMD

Institute for Management Development

UNCTAD

United Nations Conference on Trade and Development

IMF

International Monetary Fund

UNDP

United Nations Development Program

IPI

investment promotion institution

USAID

U.S. Agency for International Development

IPA

investment promotion agency

WBG

World Bank Group

information technology

WGI

Worldwide Governance Indicators

Abbreviations and Glossary

187

Glossary of terms Ad hoc arbitrations. Arbitrations that are not conducted under the auspices or supervision of an arbitration institution. Instead, parties simply agree to arbitrate, without designating any institution to administer their arbitration. The parties will sometimes select a pre-existing set of procedural rules designed to govern ad hoc arbitrations, for example, the UNCITRAL has published such rules. Agency. The person, agency, or other type of organization with which the foreign company or its legal representatives are required to interact in order to set up and run the company. It can include government agencies, municipal authorities, professional associations, auditors, notaries, and courts. Alternative dispute resolution. The procedure for settling disputes by means other than court litigation. These methods include among others mediation, conciliation and arbitration. Arbitrability. Whether the claim is capable of being resolved by arbitration. Certain categories of claims are considered in different countries as being incapable of resolution by arbitration. Such claims are deemed “non-arbitrable” because of their perceived public importance. Arbitration. A means by which disputes can be definitively resolved, pursuant to the parties’ agreement, by independent, nongovernmental decision-makers. Arbitration agreement. An agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship. Authority. See definition for Agency. Cadastre. A cadastre is normally a parcel-based and up-to-date land information system containing a record of interests in land (rights, restrictions and responsibilities). It usually includes a geometric description of land parcels linked to other records describing the nature of the interests, ownership or control of those interests, and often the value of the parcel and its improvements. (Please note that the cadastre is more common in civil law jurisdictions than in common law jurisdictions.) Calendar days. As opposed to business days, calendar days include every day of the week (working and nonworking days). For example, 1 week has 7 calendar days but fewer business days (5 or 6, typically). Commercial. Has the meaning ascribed to it in the 1985 UNCITRAL Model Law on International Commercial Arbitration Concession agreement. A right granted by the government to a private company. It specifies the rules under which the company can operate locally. Confirmation of an arbitration award. The parties may apply to court for an order “confirming” the arbitration award. The court will normally confirm the award unless it has grounds for refusal or denial of enforcement. Conveyance. A method whereby rights in land are transferred from one owner to another. The rights may be full ownership or a mortgage, charge, or lease. Customary tenure. The holding of land in accordance with customary law. That is, the right to enjoy some use of land that arises through customary, unwritten practice rather than through written or codified law.

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Deed. A legal document laying out the conditions under which land is transferred. Enforcement of an arbitration award. The conversion of the award into a court judgment with all the sanctions that a court judgment entails, such as the right to have the debtor’s assets seized. FDI. According to the International Monetary Fund, FDI is a category of cross-border investment that involves residents of one economy obtaining a lasting interest in an enterprise located in another economy. A lasting interest is commonly understood to involve at least 10% of ordinary shareholding or voting power. In effect, FDI need not entail much transfer of funds and can involve a firm bringing its brand, technology, management, and marketing strengths to bear on its local interest. Freehold. Ownership of land distinct from leasehold, in which the owner has the maximum rights permissible within the tenure system. Geographic information system (GIS). A system for capturing, storing, checking, integrating, analyzing, and displaying data about the Earth that is spatially referenced. It is normally taken to include a spatially referenced database and appropriate applications software. ICC Amicable Dispute Resolution Rules. These rules permit the parties to settle their disputes or differences amicably with the assistance of a third party, the Neutral, within an institutional framework. The Rules do not include arbitration, but only proceedings which do not result in a decision or award of the Neutral which can be enforced at law. ICSID Convention. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which entered into force in October 1966 and was established by ICSID. Institutional arbitrations. Arbitrations undertaken within a particular organization providing institutional arbitration services. Some of the best-known international arbitration institutions are the International Chamber of Commerce (ICC), the American Arbitration Association (AAA), and the London Court of International Arbitration (LCIA). Land information system (LIS). A parcel-based GIS, used as a system for acquiring, processing, storing, and distributing information about land. It also can be a tool for legal, administrative, and economic decision making and an aid for planning and development. Land registry. The definitive record of all registered properties, comprising the registered details for each property. Land registration. The process of recording rights in land in the form of either registration of deeds or registration of title to land. Land tenure. Tenure is the relationship, whether legally or customarily defined, among people as individuals or groups, with respect to land and associated natural resources. Rules of tenure define how property rights in land are to be allocated and transferred within societies. Land-tenure systems determine who can use what resources, for how long, and under what conditions. Land title (or Title). The evidence of a person’s right to property or land or the right itself.

Lease. A lease is a contractual agreement between a landlord and a tenant for the tenancy of land. The period of the lease is known as the “term” of the lease. The lease should be for a definite period, or for a period that is capable of definition. The date of commencement should be fixed, and the date of termination either fixed, or capable of being fixed. The lease should offer the tenant the right to exclusive possession of the land, thus giving the lessee the right to exclude others, including the landlord, from the land. Leasehold. Land held under a lease, which is a contract by which the right of exclusive possession of land is granted by a landlord (the lessor) to a tenant (the lessee) for an agreed amount of money and an agreed period of time. Legally required. A procedure is said to be legally required when the laws or regulations of the country specifically mandate it as a requirement. Mergers & Acquisitions. The phrase mergers and acquisitions (abbreviated M&A) refers to the aspect of corporate strategy, corporate finance and management dealing with the buying, selling and combining of different companies that can aid, finance, or help a growing company in a given industry grow rapidly without having to create another business entity. Mortgage. The transfer of a property by a debtor (called the mortgagor) to a creditor (called the mortgagee) as security for a financial loan with the provision that the property be returned when the loan is paid off. In some legal systems there is a provision that the mortgagee has the power to sell the concerned property when the interest is not paid in time and the loan is not paid off by a certain date in accordance with the agreed upon stipulations. N/A. Not applicable. National law. This term includes statutes, regulations and rules established by court decisions in a country, as well as any mandatory regulatory or administrative requirements. If the country is a federation of states (or similar entities), “national law” also includes the law of the state in which the largest business city is located, to the extent such state law may be applicable.

Registration of deeds. A system of proof of property ownership and interests based on the registration of transfer and other deeds. In an official deeds registration system, a copy of the relevant deed, for example, a transfer deed, is deposited in the deed registry. An appropriate entry is then made into the register of the time, date, parties, and transaction, as may be required by the particular jurisdiction. Registration of title. A system for improving the quality of ownership and proof of title. There are 2 parts in the register. The first is a map on which each parcel is demarcated and identified by a unique parcel identifier. The second is a text that records details about the title, the owner, and any rights or restrictions associated with the parcel’s ownership such as restrictive covenants or mortgages. Under a title registration system, a transfer of the property simply results in a change in the name registered. Seat of arbitration. The location of the arbitration forum. The seat of arbitration has a number of significant effects upon the arbitration, including the potential of national court interference with arbitration proceedings, national court’s assistance with arbitration proceedings, the law applicable to the arbitration agreement if the parties have not agreed otherwise, and national court’s enforcement of arbitration awards. Setting aside of an arbitration award. The parties may commence an action to legally nullify the award so that it cannot be enforced locally, and in general will only be enforceable outside the seat of arbitration with great difficulty. Severable. The severability or separability doctrine provides that an arbitration agreement, even though included in and related closely to an underlying commercial contract, is a separate and autonomous agreement. Subnational. Subnational laws and regulations refer to laws of the local, municipal, provincial, or state governments. In contrast, national laws and regulations refer to laws of the central government. Subsidiary. A business that is owned by a parent company and managed under its direction.

New York Convention. 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which entered into force in June 1959. The Convention requires national courts to recognize and enforce foreign arbitral awards, subject to specified exceptions; requires national courts to recognize the validity of arbitration agreements, subject to specific exceptions; and requires national courts to refer parties to arbitration when they have entered into a valid agreement to arbitrate that is subject to the Convention.

Time in practice. Time required to complete a procedure in the experience of the survey respondent, as opposed to the time frame given in the laws and regulations.

Portfolio investment. Portfolio investment, in contrast to foreign direct investment, represents passive holdings of securities such as foreign stocks, bonds, or other financial assets and does not convey significant control over the management or operations of the foreign firm.

Vacating of an arbitration award. This is similar to an action that the parties commence to set aside an arbitration award.

UNCITRAL Model Law on International Commercial Arbitration. This was adopted by the UNCITRAL in June 1985, and amended in 2006. This “Model Law” aims at resolving disparities in different national laws dealing with international commercial arbitration. It is not binding, but states may incorporate it into their domestic legislation.

Real property. Land and any things attached to the land, including buildings, apartments, other constructions, and natural objects, such as trees.

Abbreviations and Glossary

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Investing Across Borders is a new World Bank Group initiative comparing regulation of foreign direct investment around the world. It presents indicators on countriesâ&#x20AC;&#x2122; laws, regulations, and practices affecting how foreign companies invest across sectors, start businesses, access industrial land, and arbitrate commercial disputes. www.investingacrossborders.org